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CIAL  ARITHMETIC; 


DESIGITED  FOB 


cloote,  CoMting  Rooms  ani  Business  Colleges. 

By  JAMES    B.    THOMSON,   LL.D., 
Author  of  a  Mathematical  Series. 

This  work  nas  been  prepared  with  sole  reference  to  a  business 
education  in  its  higher  departments.  To  this  end,  subjects  fully  ex- 
plained in  the  author's  elementary  Arithmetic  or  an  equivalent,  and 
with  which  the  student  is  supposed  to  be  familiar,  are  omitted. 

In  the  fundamental  rules,  many  labor-saving  methods  of  operation 
are  given  under  the  appropriate  name  "  Counting  Room  Methods."   f 

Business  forms  in  great  variety  are  introduced,  and  their  nature 
and  uses  explained.  The  manner  of  keeping  Book  Accounts,  Averaging 
Payments,  Partnership  Settlements,  etd.,  is  fully  explained  and  illus- 
trated. 

The  chapter  on  the  Metric  System  of  Weights  and  Measures  in- 
•  eludes  all  the  latest  recommendations  of  the  Metric  Bureau. 

The  facts  and  methods,  procured  from  reliable  persons  who  are 
thoroughly/  versed  in  their  several  departments,  are  authentic  business 
facts,  and  in  accordance  with  the  present  usage. 

Special  care  has  been  devoted  to  the  chapter  on  Stocks  and  Bonds, 
and  to  Stock  Exchange  business,  which  is  a  full  and  reliable  summary 
of  affairs  as  now  conducted  on  the  New  York  Stock  Exchange.  The 
examples  embrace  true  specimens  of  daily  operations  in  Wall  Street. 

The  chapters  on  Banking,  Clearing  Houses,  and  Custom  House 
business  have  also  been  subjected  to  the  most  careful  scrutiny,  as  also 
Life  Insurance,  Annuities,  Sinking  Funds,  etc. 

^  The  examples  are  all  new,  and  have  been  selected  with  a  special 
view  to  their  practical  application  to  business,  and  not  as  a  trial  of  the 
mathematical  skill  of  the  learner.  f 

••It  is  doubtful  whether  a  man  better 
fitted  than  Dr.  Thomson  to  write  such  a 
book  could  be  found.  His  books,  as  all 
who  are  acquainted  with  them  know,  have 
always  leaned  strongly  toward  the  prac- 
tical side  of  the  subject  treated,  and  when 
it  comes  to  a  work  like  this  he  is  at  home. 
It  is  impossible  to  go  into  particulars 
without  occupying  too  much  space.  Suf- 
fice it  to  say  that  it  is  a  complete  business 
arithmetic  for  everybody,  giving  all  the 
short  ways  of  computing  employed  by  the 
best  accountants,  f*&  well  as  the  general 
rules  and  business  methods  which  every 
man  needs  to  have  at  hand."— iV€t^  Eng- 
land Journal  of  Education,  Boston,  Mass. 


"I  can  say  that  I  consider  it  an  excellent 
work  and  well  adapted  to  the  wants  of  our 
public  schools."—  W.  W.  CoUmm,  Prin.  of 
High  School,  Springfldd,  Mass. 

"  If  any  young  man  masters  its  contents 
he  will  start  in  Bfe  with  a  very  creditable 
knowled'e  of  the  way  in  which  the  busi- 
ness of  the  world  is  transacted,  and  will 
be  able  to  do  his  share  of  it,  too." — C.  C. 
Staufer,  A.M.,  Prin.  qf  Sigh  School,  WU- 
liamsport,  Pa. 

"It  is  excellent.  We  like  It  exceeding- 
ly."—Jm»n«  AUen,  State  Normal  School, 
St.  Cloud,  Minn. 


pages,  12mo,  cloth. 


EFF'NGHAM  MAYNARD  &  Co..  Publishers,  New  York. 


,  ♦;  •.  >.;''*->:. 


SAMUEL  CARSON  &  CO. 

PUBLISHERS 

/HOLESALE  BOOKSELLERS  &  STATIOI 
208  Post  Street 


A  Text-Book  on  Commercial  Law. 

A  Manual  of  the  Fundamental  Principles  Governing  Business 
Transactions.  For  the  Use  of  Commercial  Colleges,  High 
Schools  and  Academies.  By  Salter  S.  Clark,  Counsellor-at- 
Law.  Reviser  of  Young's  Government  Class-Book,  Handsomely 
printed.     13mo.     300  pp. 

The  design  of  the  author  in  this  volume  has  been  to  present  simply, 
and  compactly,  the  principles  of  law  affecting  the  ordinary  transactions  of 
commercial  life,  in  the  form  of  a  Class-book  for  Schools  and  Commercial 
Colleges. 
The  plan  of  the  book  is  as  follows  : 

After  a  short  introduction  upon  the  relations  of  National  and  State  law, 
and  of  constitutional,  statute,  and  common  law,  it  is  divided  into  two  parts. 
Part  I.  treats  of  principles  applicable  to  all  kinds  of  business,  in  three  divi- 
sions, treating  respectively  of  Contracts,  Agency  and  Partnership,  with  a 
fourth  division  embracing  the  subject  of  Corporations,  and  a  few  others 
general  in  their  nature.  Part  II.  takes  up  in  order  the  most  prominent 
kinds  of  business  transactions,  paying  chief  attention  to  the  subjects.  Sale 
of  Goods,  and  Commercial  Paper,  and  is  to  a  large  extent  an  application  of 
the  principles  contained  in  the  preceding  part. 

The  chief  aim  has  been  throughout  to  make  it  a  book  practically  use- 
ful, and  one  easily  caught,  understood  and  remembered.  As  subserv'ing 
those  purposes  attention  may  be  called  to  the  following  features  among 
others-— the  use  of  schemes  in  graded  type,  which  summarizing  a  subject 
impresses  it  upon  the  mind  through  the  eye ;  the  summaries  of  leading 
rules  at  diflferent  points ;  a  table  of  definitions ;  the  forms  of  business 
papers  most  frequently  met  with ;  and  the  frequent  use  of  examples  and 
cross— rGfcrGii  CGS . 

The  work  is  used  in  nearly  all  of  the  leading  Commercial  Colleges  of  the 
country.  

RECOMMENDATIONS. 

FromB.  F.  Moore,  A.M.,  Pres.  Soutfiern  Business  University.  Atlanta,  Oa. 
I  find  the  work  fully  adapted  for  use  in  business  schools  as  a  text  book,  on 
account  of  its  conciseness  ;  also  to  the  accountant  as  a  book  of  reference  on  points 
of  commercial  law  and  business  forms.    It  is  the  most  com.plete  and  concise  work 
on  the  subject  that  I  have  seen. 

SoTiDBB's  Chicago  Business  Collegb,  Chicago,  111.,  Aug.  14,  1883. 
Send  to  my  address,  by  freight,  200  Clark's  Commercial  Law. 

J.  J.  SOUDER,  Prop'r. 

Spencebian  Business  College,  Milwaukee,  Wis.,  Aug.  1,  1882. 
Please  forward  me,  by  express,  100  copies  Clark's  Commercial  Law. 

R.  C.  SPENCER,  Principal. 
The  B.  and  S.  Davenpobt  Business  College,  Davenport,  Iowa.  Nov.  25,  1882. 
You  may  ship  us,  by  freight,  120  Clark's  Commercial  Law. 

LILLIBRIDGE  &  VALENTINE,  Principals. 

Methopolitan  Business  College,  Chicago,  111.,  Aug.  8,  1882. 
Please  ship  us  150  Clark's  Commercial  Law.  HOWE  &  POWERS,  Prop'rs. 

Lawubnce  Business  College,  Lawrence,  Kan.,  Aug.  25, 1882. 
Please  send  us  100  copies  of  Clark's  Commercial  Law. 

BOOR  &  McILRAVY,  Prop'r*. 
New  Jebsey  Business  College,  Newark,  N.  J.,  Sept.  22,  1882. 
Please  send  us,  by  express,  60  Clark's  Commercial  Law. 

MILLER  &  DRAKE,  Principals. 


EFFINGHAM  MAYNARD  &  CO..  Publishers,  New  York. 


:--.>«i;%Y>-,i»<»s»,>«;^*j'.-s»..«-i*':>";'*'4 


V  THE 

Government  Class  Book. 


A  YouWs  Manual  of  Instruction  in  the  Principles  of 
Constitutional  Government  and  Law. 


Pakt  I.     Pri;n^ciples  of  GoVERKMEiq^T  ; 

L    General.  Principles  of  Government. 
II.    Government  in  the  State. 
III.    The  United  States  Government, 

Part  II.     Prin^ciples  op  Law  ; 

I.    Common  and  Statutory  Law  (or  Municipal.  Law). 
XL    International  Law. 


By  ANDREW  W.  YOUNG, 

Autlior  of  '^^ American  Statesman,''''  "  Citizen'' 8  Manual  of  Oovemment 
and  Law,''''  etc.,  etc. 


NEW   EDITIO:Nr, 

Thoroughly  Realised 

By  SALTER  S.  CLARK 

Counsellor  at  Law. 


NEW   YORK: 

Effingham   Maynard   &   Co, 

successors  to 

Clark  &  Maynard,  Publishers, 

771  Broadway  and  67  &  69  Ninth  St. 

1889. 


IDOCATIOf  ZIBB; 


Copyright,  1880,  by  Clark  &  Maynard. 


PREFACE. 


There  is  probably  none  to  deny  that  the  study  of  the 
principles  of  political  science  is  a  necessary  part  of  a 
liberal  education.  But  in  a  country  where  the  people  gov- 
ern themselves  we  believe  it  is  more  than  this:  it  is  a 
necessary  part  of  a  common-school  education.  In  the 
United  States  there  is  the  strongest  reason  for  this,  for 
here  not  only  do  high  and  low  alike  elect  their  own  law- 
makers and  rulers,  but  they  also  establish  their  own  con- 
stitutions and  determine  even  the  fundamental  principles 
upon  which  they  shall  be  governed.  The  danger  of  en- 
trusting such  power  to  the  ignorant  has  not  failed  of  illus- 
tration here,  and  lately.  But  having  universal  suffrage — 
for  good  or  evil — there  is  but  one  resource,  to  teach  the 
people  how  to  govern  themselves. 

Nor  is  a  knowledge  of  the  principles  of  legal  science  less 
necessary  to  every  person.  The  laws  of  man  know  as  little 
of  mercy  as  the  laws  of  nature,  in  that  they  never  admit 
ignorance  as  an  excuse  for  wrong.  It  is  a  proof  of  the 
essential  justice  of  our  system  of  jurisprudence,  that  so 
many  pass  safely  through  life,  totally  ignorant  of  the  law, 
and  relying  merely  upon  their  own  sense  of  what  should 
be.  And  yet  every  day  gives  proof  that  ignorance  is  always 
dangerous.  The  study  of  such  a  work  will  not  make  a 
youth  a  lawyer,  but  it  will  fix  in  his  mind  a  system  of 
broad  principles,  which  cannot  fail  to  be  useful  practically. 

M57'?070 


iv  Preface. 


Though  these  facts  are  self-evident,  this  study  has  been 
heretofore  strangely  neglected.  The  aim  of  this  book,  in  sup- 
plying a  want  believed  to  exist,  is  to  present,  in  such  form 
n.s  to  be  used  chiefly  as  a  text-book  for  schools,  a  broad  and 
comprehensive  view  of  the  principles  of  government  and 
law  in  the  United  States  (which  are  substantially  the  same 
throughout  the  country),  and  thus  to  teach  the  young  the 
varied  rights  and  duties  of  a  citizen  in  relation  to  his  gov- 
ernment and  his  fellow-citizens. 

The  book  is  divided  into  two  parts. 

Part  I.,  Principles  of  Government,  is  devoted  (after  a 
few  chapters  upon  general  principles),  first,  to  government 
by  the  State,  and  second,  to  government  by  the  ISTation. 
It  is  here  that  the  book  is  believed  to  have  its  chief  advan- 
tage over  others  of  its  kind.  In  all  that  we  have  exam- 
ined, either  one  or  the  other  of  these  subjects  has  been 
neglected.  Many  youth  have  grcnvn  to  manhood  with  so 
little  ajipreciation  of  the  joolitical  importance  of  the  State, 
as  to  believe  it  nothing  more  than  a  geographical  division; 
others  have  placed  the  State  too  liigli  and  failed  to  realize 
the  power  and  dignity  of  the  Nation.  In  reality,  the  Na- 
tional Government,  on  the  one  hand,  is  of  far  greater  his- 
toric interest  and  permanent  political  importance,  as  really 
governing  the  future  freedom  or  serfdom  of  the  race.  On 
the  other  hand,  the  State,  which  says  whether  the  particular 
individual  shall  vote,  what  rights  of  property  he  shall  have, 
and  what  shall  be  the  punishment  for  his  crimes,  enters  far 
more  into  the  daily  affairs  of  the  single  citizen,  touches  him 
at  more  points,  and  is  therefore  of  greater  temporary  in- 
terest. Both  subjects  should  be  studied,  and  it  is  of  es- 
pecial importance  at  this  time  that  their  relation  to  each 
other  should  be  clearly  presented  to  the  youth  of  the  land, 
for  State  rights  and  National  riglits  have  not  yet  finished 
their  conflict. 


Preface, 


Part  II.,  Principles  of  Law ,  contains  also  two  divisions, 
the  first  one  presenting  the  main  principles  which  govern 
the  rights  and  duties  of  man  to  man  in  his  every-day  life, 
his  varied  rights  connected  with  personal  security,  liberty, 
and  property;  and  the  second  giving  the  rules  by  which  the 
relations  of  nations  to  each  other  are  regulated. 

Thus  the  volume  presents  a  general  view  of  the  posi- 
tion of  the  citizen  in  all  the  relations  he  may  sustain  in 
this  country:  to  his  fellow-citizen,  to  his  State,  to  his 
Nation,  and  to  foreign  nations.  Throughout  the  book 
the  purpose  has  been  to  omit  all  details,  so  as  not  to  injure 
the  effect  of  the  principle,  even  where  a  small  untruth  is 
implied  for  the  sake  of  a  larger  truth. 

The  present  revision  has,  it  is  thought,  made  extensive 
improvement,  by  changes  and  additions  which  the  great 
events  of  the  last  few  years  have  rendered  necessary,  by 
pursuing  a  more  natural  and  logical  order,  with  proper 
subordination  of  topics,  by  confining  each  paragraph  of 
the  chapter  to  a  single  subject  and  supplying  it  with  a 
title,  and  by  the  addition  of  schemes,  where  appropriate,  to 
be  used  as  blackboard  exercises,  and  of  review  questions  for 
the  use  of  both  pupil  and  teacher.  It  is  confidently  hoped 
that  the  book  in  this  revision  may  find  as  much  favor  as 
has  been  kindly  shown  it  in  the  past. 

S  S.  C'. 


New  York,  June  21,  1880. 


AINTALYSIS  OF  COI^TEISTTS. 


Paet  I — Principles  of  Government  ; 


Div.  I. — General  Principles  ; 

Div.  II. — State  Governments  ; 
Sec.      I. — Introductory, 
Sec.    II. — Legislative  Department, 
Sec.  III. — Executive  Department, 
_  Sec.  IV. — Judicial  Department. 

Div.  III. — The  National  Government ; 

Sec.      I. — Its  Origin  and  Nature, 
Sec.    II. ^Legislative  Department, 
Sec.  III. — Executive  Department, 
Sec.  IV. — Judicial  Department, 
Sec.    V. — Miscellaneous  Provisions. 


Par**  II — Principles  of  Law; 

Div,  I. — Municipal  Law  ; 

Sec.      I.— Civil  Rights  in  General, 
Sec.    II. — Contracts, 
Sec.  III.— Real  Estate, 
Sec,  IV. — Criminal  Law.   . 

Div.  n. — International  Law ; 

j  Sec.      I. — Peaceful  Relations  of  Nations, 
}  Sec.    II. — Relations  of  Nations  in  War. 


CONTENTS. 

:pa.ieit  I. 
PErNOIPLES  OF  GOYEENMEJSTT. 


DIVISION  I. 

General  pRmciPLES. 

PAGE 

Chapter      I.  Mankind  fitted  for  Society,  Government,  and  Law.     11 

Chapter    II.  Rights,  Liberty,  and  Law,  classified 13 

Chapter  III.  Different  Forms  of  Government 19 


DIYISION  11. 

State  Governments. 

SECTION  I.— INTRODUCTORY. 

THELR  BASIS — THE  CONSTITUTION :  ELECTIONS  •  THKEE  DEPARTMENTS. 

Chapter   IV.  Constitutions:  Their  Nature,  Object,   and  Estab- 
lishment   23 

Chapter     V.  Qualifications  of  Electors 26 

Chapter   YL  Elections 28 

Chapter  YII.  Division  of  Powers  of  Government 31 

SECTION  IL 

LEGISLATIVE   DEPARTMENT. 

Chapter  YIII.  Legislature :  how  constituted 34 

Chapter     IX.  Meetings  and  Organization 37 

Chapter       X.  Manner  of  Enacting  Laws 40 


VUl 


Contents. 


SECTION  III. 

EXECUTIVE   DEPARTMENT. 

PAGE 

Chapter            XI.  State  Officers 45 

Chapter          XII.  County  Officers ...    49 

Chapter         XIII.  Town  Officers 54 

Chapter         XIY.  Cities  and  Villages 56 

Chapter           XY.  Taxes 60 

Chapter         XYI.  Education 65 

Chapter       XYII.  Public  Institutions 69 

Chapter     XYIII.  Militia 72 

SECTION  lY. 

JUDICIAL    DEPARTMENT. 

Chapter        XIX.  Courts 75 

Chapter  XX.  Legal  Proceedings 79 

DIVISION  III. 
TnE  National  Government. 


SECTION  I. 

ITS   ORIGIN   AND   NATURE. 

Chapter         XXI.  Government  before  the  Revolution. . , 90 

Chapter       XXII.  The  Confederation 93 

Chapter     XXIII.  The  Union  under  the  Constitution 97 

Chapter      XXI Y.  Constitution  of  the  United  States 100 

SECTION  II. 

LEGISLATIVE   DEPARTMENT. 

Chapter       XXY.  House  of  Representatives 124 

Chapter      XXYI.  Senate 128 

Chapter    XXYII.  General  Legislative  Regulations 131 

Chapter  XXYIII.  Powers  of  Taxation 133' 

Chapter      XXIX.  Power  to  Regulate  Commerce 136 

Chapter       XXX.  Other  Powers  relating  to  Peace 140 

Chapter      XXXI.  Powers  relating  to  War 147 

Chapter    XXXII.  Prohibitions  on  the  United  States. 152 

Chapter  XXXIII.  Prohibitions  on  the  States 155 


Contents.  ix 


SECTION  III. 

EXECUTIVE   DEPARTMENT. 

PAGK 

Chapter      XXXIV.  President    and  Vice-President  :    Election, 

Qualifications,  etc 160 

Chapter       XXXV.  Powers  and  Duties  of  the  President 163 

Chapter      XXXVI.  Auxiliary  Executive  Departments 168 

SECTION  IV. 

JUDICIAL  DEPARTMENT. 

Chapter    XXXVII.  National  Courts  and  their  Jurisdiction  ....  171 
Chapter  XXXVIII.  Treason 176 

SECTION  V. 

MISCELLANEOUS  PROVISIONS. 

Chapter     XXXIX.  Relations  of  States 178 

Chapter  XL.  Amendment:     Debt:     Supremacy:     Oath: 

Test:  Ratification 181 

Chapter  XLI.  The  First  Twelve  Amendments 183 

Chapter  XLII.  The  13th,  14th,  and  15th  Amendments 189 


PAR.T   II. 
PEC^TOIPLES  OF  LAW. 


DIYISIOlsr  I. 

MuN^iciPAL   Law. 

SECTION  I. 

CIVIL   RIGHTS  IN   GENERAL. 

Chapter         XLIII.  Absolute  Civil  Rights 195 

Chapter         XLIV.  Relative  Civil  Rights 199 

SECTION  II. 

CONTRACTS. 

Chapter  XLV.  Contracts  in  General 202 

Chapter         XLVI.  Marriage 208 


Contents, 


PAGE 

Chapter  XL VII.  Principal  and  Agent 211 

Chapter  XLVIII.  Partnership 214 

Chapter  XLIX.  Sales  of  Personal  Property 217 

Chapter  L.  Gifts:  Fraudulent  Transfers 220 

Chapter  LI.  Promissory  Notes  and  Bills  of  Exchange 221 

Chapter  LII.  Services 228 

Chapter  LIII.  Insurance 230 

Chapter  LIV.  Shipping 232 

Chapter  LV.  Interest.. 234 

SECTION  III. 

IIEALESTATE. 

Chapter        LVI.  Estates  in  Real  Property 235 

Chapter       LVII.  Deeds  and  Mortgages 237 

Chapter     LVIII.  Appurtenances 239 

Chapter         LIX.  Landlord  and  Tenant 242 

Chapter  LX.  Distribution  of  Property  upon  Death 245 

SECTION  IV. 

CRIMINAL     LAW. 

Chapter        LXL  Crimes 249 


DIVISION  II. 

International  Law. 

SECTION  L 

PEACEFUL  RELATIONS  OF  NATIONS. 

Chapter       LXII.  Nature  and  Authority  of  International  Law. .  256 
Chapter    LXIIL  Ordinary  Rules  of  Peace 260 

SECTION  II. 

RELATIONS  OF   NATIONS  IN  WAR. 

Chapter     LXIV.  Causes  and  Objects  of  War 264 

Chapter       LXV.  Rights  and  Duties  of  Belligerents 266 

Chapter     LXVI.  Rights  and  Duties  of  Neutrals 270 


PEIKOIPLES 


OF 


Government  and   Law, 


PART  I. 
PEHfOIPLES   OF  GOYEEI^MEIJT. 


DIYISIOK  I. 
General  Principles. 


CHAPTER  I. 

MANKIND  FITTED  FOE   SOCIETY,   GOVERNMENT,   AND  LAW. 

1.  Mankind  Social.  —  Men  are  by  nature  fitted  for 
society.  By  this  we  mean  that  they  are  naturally  dis- 
posed to  associate  with  each  other.  They  could  not  be 
happy  without  such  association.  Hence  we  conclude  that 
the  Creator  has  designed  men  for  society. 

2.  Dependent  on  Each  Other. — Man  is  so  formed  that 
he  is  dependent  upon  his  fellow-men.  He  has  not  the 
natural  strength  of  other  animals.  We  can  hardly  imagine 
how  a  person  could  defend  himself  against  the  beasts,  or 
eyen  procure  the  necessaries  of  life,  without  assistance  from 
his  fellow-beings.  But  by  means  of  conversation  they  are 
enabled  to  improve  their  reason  and  increase  their  knowl- 
edge, and  to  find  methods  of  supplying  their  wants,  and  of 
improving  their  social  condition. 


12  Principles  of  Government 

3.  Each  Must  Support  Himself. — But,  although  men 
need  the  assistance  of  each  other,  society  is  so  formed 
that  each  must  have  the  care  of  himself.  If  every  man 
were  fed  and  clothed  from  a  common  store,  provided  by 
the  labor  of  all,  many,  depending  upon  the  labor  of  others, 
would  be  less  industrious  than  they  now  are.  By  the 
present  arrangement,  which  obliges  every  man  to  provide 
for  his  own  wants,  more  is  produced,  a  greater  number  are 
cared  for,  and  the  general  welfare  is  better  promoted  than 
would  be  done  if  each  labored  for  the  benefit  of  all. 

4.  Right  of  Property. — From  this  arrangement  comes 
the  right  of  property.  If  each  man's  earnings  should  go 
into  a  common  stock  for  the  use  of  all,  there  would  be 
nothing  that  any  one  could  call  his  own.  But  if  each  is  to 
provide  for  himself,  he  must  have  a  right  to  use  and  enjoy 
the  fruits  of  his  own  labor. 

6.  Common  to  All. — But  all  men  in  society  have  the 
same  rights.  Therefore  we  cannot  rightfully  supply  our 
own  wants  or  gratify  our  own  desires  any  further  than  is 
consistent  with  the  rights  of  others.  But  man  is  by  nature 
selfish,  and  many  would  infringe  the  rights  of  others,  for 
their  own  selfish  ends,  unless  restrained.  Hence  we  see 
the  necessity  of  some  fixed  rules  that  each  one  may  know 
what  he  may  do,  and  what  he  must  not  do. 

6.  Law. — These  rules  for  regulating  the  social  actions 
of  men  are  called  laws.  Law,  in  a  general  sense,  is  a  rule 
of  action,  and  is  applied  to  all  kinds  of  action;  as,  the  law 
of  gravitation,  the  laws  of  chemistry,  etc.  But  in  a 
limited  sense,  it  denotes  the  rules  of  human  action  pre- 
scribing what  men  are  to  do,  and  forbidding  what  they 
are  not  to  do. 

7.  Man  a  Moral  Being. — We  have  seen  that  man  is 
fitted  for  law,  because  he  is  designed  for  society,  and  law  is 
necessary  to  govern  society.     But  by  nature,  also,  he  ig 


(jcneral  rrincvplts,  13 

fitted  for  goyernment  and  law.  because  lie  is  a  moral  being. 
The  word  moral  has  yarious  significations.  When  we  say, 
a  moral  man,  we  mean  a  yirtnons  or  upright  man.  But  in 
a  wider  sense  it  relates  to  the  social  actions  of  men,  both 
right  and  wrong,  as  when  we  say,  his  morals  are  good,  or 
his  morals  are  bad.  "When  it  is  said  that  man  is  a  moral 
being,  it  is  meant  that  he  has  a  sense  of  right  and  wrong, 
or  at  least  the  power  of  acquiring  it.  He  knows  what  is 
right  and  what  is  wrong,  and  he  knows  that  he  ought  to 
do  the  right  and  ayoid  the  wrong.  Therefore  he  is  fitted 
to  understand  why  laws  are  right. 

8.  Government  Necessary.  —  Thus  we  haye  seen  that 
men  are  social,  reasonable,  and  moral  beings,  and  that  for 
each  one  of  those  reasons  they  are  fitted  for  society  and 
law.  But  law  cannot  exist  without  goyernment.  Law  is 
a  rule  of  action  laid  down  by  the  supreme  power,  and  if 
there  is  no  supreme  power  there  can  be  no  law.  Hence  we 
see  the  necessity  for  goyernment.  It  is  not  probable  that 
people  knowingly  acted  on  these  principles  in  first  forming 
goyernments;  that  is,  deliberately  met  together  and  agreed 
to  haye  a  certain  goyernment  and  certain  laws.  But  it  is 
those  principles  that  maintain  them  now. 


CHAPTER  II. 

RIGHTS,  LIBERTY,  ANB   LAW,  CLASSIFIED. 

1.  Rights. — A  right  is  a  just  claim.  We  haye  a  right 
to  what  we  haye  acquired  by  honest  labor,  or  other  lawful 
means,  because  we  are  justly  entitled  to  freely  use  and 
enjoy  it.  We  haye  a  right  to  our  liyes,  and  to  our  freedom, 
that  is  to  do  whateyer  we  think  necessary  for  our  own 
safety  and  happiness,  proyided  we  do  not  trespass  upon  the 


14  Principles  of  Government 

rights  of  others,  because  it  would  be  unjust  to  deprive  us 
of  our  lives  or  freedom. 

2.  How  Forfeited.  —  But  society  has  its  rights  also, 
and  if  we  infringe  them  it  is  just  we  should  be  punished 
by  losing  some  of  our  own.  We  may  forfeit  them  by  some 
offence  or  crime.  If,  for  example,  a  man  is  fined  for  break- 
ing a  law,  he  loses  his  right  to  the  money  he  is  obliged 
to  pay.  By  stealing,  he  forfeits  his  liberty,  and  may  be 
justly  imprisoned.  By  committing  murder,  he  forfeits  his 
right  to  life,  and  may  be  hanged. 

3.  Political  Rights.  —  Rights  are  political  or  civil. 
Political  rigMs  are  those  which  each  citizen  has  with 
reference  to  sharing  in  the  government.  The  word  politi- 
cal, in  a  general  sense,  relates  to  the  government.  The 
whole  body  of  the  people  united  under  one  government  is 
called  the  political  body,  or  body  politic.  The  right  of  the 
people  to  choose  and  establish  for  themselves  a  form  of 
government,  or  constitution,  and  the  right  to  elect  persons 
to  make  and  execute  the  laws,  are  political  rights.  The 
right  of  voting  at  elections  is  therefore  a  political  right. 
Political  rights  are  derived  from  the  constitution.  Under 
absolute  monarchies,  therefore,  where  there  is  no  constitu- 
tion, the  people  have  no  political  rights;  under  democra- 
cies they  have  more  than  under  any  other  form  of  govern' 
ment. 

4.  Civil  Rights  are  all  those  which  are  not  political 
They  are  the  rights  which  govern  our  ordinary,  every-day 
actions;  such  as,  the  right  to  go  where  we  please,  to  do 
whatever  we  wish  with  our  own  property,  or  to  control  our 
children.  They  are  also  called  natural  rights,  because 
given  to  us  by  nature,  or  by  birth;  and  sometimes  inalien- 
able  rights,  because  they  cannot  justly  be  taken  away  from 
us.  They  are  called  civil  because  they  relate  to  the  ordi- 
nary duties  of  a  citizen. 


General  Principles.  15 

5.  Absolute  Civil  Rights. — Civil  rights  are  either  ahso- 
lute  or  relative.  The  absolute  civil  rights  are  such  as 
we  have  as  individuals,  as  members  of  society,  in  our  rela- 
tions to  all  the  other  members  of  society.  They  are 
divided  into  three  classes:  the  right  of  personal  security, 
which  is  the  right  to  be  secure  from  injury  to  our  lives, 
body,  health,  or  reputation ;  the  right  of  personal  liberty, 
which  is  the  right  to  go  wherever  we  please;  and  the  right 
of  private  property,  or  the  right  to  acquire  property  and 
enjoy  it  without  disturbance.  These  are  often  called 
perso7ial  rights,  or  the  7'igMs  of  persons.  The  term  rights 
of  person  includes  only  the  first  two;  viz.,  the  rights  of 
personal  security  and  personal  liberty.  Religious  rights, 
which  consist  in  the  right  to  worship  God  in  whatever  way 
each  one  thinks  best,  and  to  make  known  and  maintain  his 
religious  beliefs,  are  absolute  rights. 

6.  Relative  Civil  Rights  are  such  as  we  have  in  our 
relations  to  particular  persons  or  classes.  They  are  either 
public  or  private.  The  public  relative  civil  rights  are 
those  we  have  in  our  relations  to  the  government  (except 
the  right  to  share  in  it);  as,  the  right  to  be  protected  by  it, 
and  the  right  the  government  and  its  officers  have  to  our 
obedience.  The  private  relative  civil  rights  are  such  as 
are  connected  with  the  four  relations  of  husband  and  wife, 
parent  and  child,  guardian  and  ward,  and  employer  and 
employed;  as,  the  right  of  the  parent  to  the  obedience  of 
the  child,  or  the  right  of  the  wife  to  be  supported  by  her 
husband. 

7.  Liberty  is  the  being  free  to  exercise  and  enjoy  our 
rights,  and  is  called  natural,  political,  civil,  or  religious, 
according  to  the  particular  class  of  rights  referred  to. 
Thus  the  exercise  of  rights  guaranteed  by  the  constitu- 
tion or  political  law  is  called  political  liberty.  The  free 
enjoyment   of   rights   secured  by  the  civil   or   municipal 


16  Principles  of  Government, 

laws  is  called  civil  liberty.  And  freedom  of  religious 
opinion  and  worship  is  called  religious  libei-ty.  Freedom 
of  speech  and  freedom  of  the  press  mean  the  liberty  to 
speak  and  print  whatever  we  choose,  j)rovided  we  do  not 
abuse  the  right. 

8.  Law. — But  it  is  easy  to  see  that  it  makes  little  differ- 
ence how  many  rights  a  man  has,  unless  there  is  some 
power  to  ensure  him  the  liberty  to  enjoy  them.  The 
object  of  law  is  to  secure  to  all  men  the  various  kinds  of 
rights  we  have  described.  It  has  different  names,  corre- 
sponding to  the  kinds  of  rights  which  it  protects;  as,  the 
political  IcnVy  which  secures  our  political  rights,  and  the 
civil  or  municipal  laiv,  which  secures  our  civil  rights.  The 
word  municipal  was  used  by  the  Romans  to  designate  that 
which  related  to  a  municipium;  i.e.,  a  free  town,  or  city. 
And  so,  often,  we  use  the  term  municipal  laiu  as  denoting 
the  law  that  relates  to  cities  or  towns,  but  here  it  is  used 
in  a  broader  sense,  and  includes  the  body  of  laws  which 
prescribe  what  we  may,  or  must  not,  do,  and  is  equivalent 
to  civil  latv.*  The  constitution  is  the  political  law;  the 
body  of  laws  governing  the  ordinary  actions  of  men  is  the 
civil  or  municipal  law;  and  the  rules  which  regulate  the 
intercourse  of  nations  with  each  other  constitute  inter- 
national law. 

9.  The  Moral  Law  is  that  which  prescribes  man's  duties 
not  only  to  his  fellow-men,  but  also  to  God.  It  is  briefly 
expressed  in  the  decalogue,  or  ten  commandments,  and  !s 
still  more  briefly  summed  up  in  the  two  great  command- 
ments, to  love  God  with  all  our  heart,  and  to  love  our 
neighbor  as  ourselves.  It  is  sometimes  called  the  divine 
law,  because  God  is  its  author,  and  the  revealed  law,  or  law 


*Care  must  be  taken  to  distinguish  the  term,  as  used  in  this  con- 
nection, from  the  Civil  Law,  a  name  for  the  old  Roman  law. 


General  Principles,  17 

of  revelation,  because  ifc  is  revealed  to  man  in  the  Scrip- 
tures. As  a  rule  of  conduct  it  is  also  the  same  as  the  law 
of  nature,  the  only  difference  between  them  being  in  their 
origin;  the  former,  the  revealed  laio,  coming  directly  from 
God,  and  the  latter,  the  laio  of  nature,  coming  from 
nature — that  is,  our  own  consciousness  in  its  perfect  state. 
10.  Broader  than  Civil  Law. — Altliougli  the  moral  law 
is  a  perfect  rule  of  action,  to  which  all  human  laws  ought 
to  conform,  yet  the  civil  law  does  not,  and  cannot,  em- 
brace all  that  the  moral  law  does.  The  moral  law  is 
directed  not  only  to  the  outward  acts,  but  also  to  the 
thoughts  and  intents  of  the  heart.  It  requires  us  to  love 
our  Creator  supremely,  and  our  neighbor  as  ourselves;  in 
other  Avords,  to  do  to  others  as  we  would  that  they  should 
do  to  us.  But  as  the  omniscient  God  only  knows  when 
men  fail  in  these  duties,  no  human  authority  could  enforce 
such  a  law.  Human  laws,  therefore,  have  respect  chiefly 
to  the  outward  acts  of  men,  and  are  designed  to  regulate 
their  intercourse  with  each  other. 


18 


Principles  of  Government. 


Rights   of  Citizens. 


I.  POLITICAL  ;  these  are 

{1.  Right  of  all  to  establish  a  government,  and 
2.  Right  of  each  to  share  in  it,  by  voting. 

II.  CIVIL  ;  these  are 

1.  Absolute;  they  are  the  right  of 
[  1.  Personal  Security, 
}  2.   Personal  Liberty,  and 
(  3.  Private  Property. 

2.  Relative  ;  these  are 
'  ] .  Public ;  they  are 

1.  Right  of  people  to  protec- 
tion of  government,  and 

2.  Right   of    government    to 
obedience  of  people. 

Private ;  arising  from  relations  of 

1.  Husband  and  wife, 

2.  Parent  and  child, 

3.  Guardian  and  ward,  and 

4.  Employer  and  employed 


General  Principles.  19 


CHAPTER  III. 

DIFFEREN^T    FORMS   OF   GOVERiq"MEirr. 

1.  Patriarchal  Government. — Governments  have  existed 
in  a  great  variety  of  forms.  Most  existing  governments 
are,  more  or  less,  mixtures  of  the  different  kinds.  The 
earliest  governments  of  which  wq  have  any  knowledge  are 
the  patriarchal.  Patriarchy  from  the  Greek  pater,  father, 
and  arcJioSf  chief,  or  head,  means  the  father  and  ruler  of  a 
family.  This  kind  of  government  prevailed  in  the  early 
ages  of  the  world,  and  is  the  form  adapted  to  a  state  of 
society  where  the  people  dwell  together  in  families  or 
tribes,  and  are  not  yet  formed  into  states  or  nations. 
Abraham  was  a  patriarchal  ruler. 

2.  Theocracy. — After  their  departure  from  Egypt,  the 
government  of  the  Hebrews  was  a  theocracy.  This  word 
is  from  theos,  God,  and  kratos,  power,  and  signifies  a  gov- 
ernment by  those  who  are  also  the  religious  rulers,  or,  as  it 
is  claimed,  by  the  immediate  direction  of  God.  The  laws 
by  which  they  were  governed  they  believed  were  given  to 
them  on  Mount  Sinai  by  God  himself,  their  leader  and  king. 

3.  Most  Common  Forms. — But  the  most  common  forms 
of  government  are  monarchy,  aristocracy,  and  democracy. 
Many  claim  that  all  kinds  of  government  may  be  reduced 
to  one  of  these  three.  For  example,  the  patriarchal  gov- 
ernment is  but  a  kind  of  monarchy.  The  power  of  gov- 
ernment is,  in  a  general  sense,  called  the  supreme  power, 
or  sovere'nnty. 

4.  Monarchy. — The  form  of  government  in  which  the 


so  Principles  of  Government. 

supreme  power  is  in  the  hands  of  one  person  is  called  a 
monarchy.  The  word  monarch  is  from  two  Greek  words, 
monos,  sole  or  only,  and  archos,  a  chief;  and  is  a  general 
name  for  a  single  ruler,  whether  he  is  called  king,  em- 
peror, or  prince.  A  government  in  which  all  power  re- 
sides in  or  proceeds  from  one  person  is  an  absolute 
monarchy.  If  the  power  of  the  monarch  is  restrained  by 
laws  or  by  some  other  power,  it  is  called  a  limited  mon- 
archy. The  English  Government  is  a  limited  monarchy. 
A  monarchy  is  called  hereditary  in  which  the  throne  passes 
from  father  to  son,  or  from  the  monarch  to  his  successor, 
by  inheritance.  On  the  death  of  a  sovereign,  the  eldest 
son  is  usually  heir  to  the  crown.  A  monarchy  is  elective 
where,  on  the  death  of  the  ruler,  his  successor  is  appointed 
by  an  election.     Only  a  few  such  monarchies  have  existed. 

6.  Despotism. — An  absolute  monarchy  is  sometimes 
called  despotism.  The  words  despot  and  tyrant  at  first 
meant  simply  a  single  ruler.  They  are  now  applied,  for 
the  most  part,  to  rulers  who  exercise  authority  over  their 
subjects  with  severity.  In  an  absolute  despotism,  the 
monarch  has  entire  control  over  his  subjects.  They  have 
no  law  but  the  will  of  the  ruler,  who  has  at  command  a 
large  force  of  armed  men  to  keep  his  people  in  subjection. 
The  governments  of  Eus-sia  and  Turkey  are  more  despotic 
than  any  others  in  Europe. 

6.  Aristocracy  is  tlie  form  of  government  in  which  the 
power  is  exercised  by  a  pri\ilegcd  order  of  men,  distin- 
guished for  their  rank  and  wealth.  The  word  aristocracy 
is  from  the  Greek  word  aristos,  best,  and  hratos,  power,  or 
krateOy  to  govern;  and  meant,  originally,  government  by  the 
best  men.  It  is  also  used  for  the  nobility  of  a  country 
under  a  monarchical  government.  Nobles  are  persons  of 
rank  above  the  common  people,  and  bear  some  title  of 
honor.  The  titles  of  the  English  nobility  are  duL<j,  marquis, 


General  Principles.  21 

earl,  viscount,  and  baron.  These  titles  are  hereditary, 
being  derived  from  birth.  In  some  cases  they  are  con- 
ferred upon  persons  by  the  king. 

7.  Democracy  is  government  by  the  people;  the  word 
democracy  being  from  the  Greek  demos,  the  people,  and 
Tcrateo,  to  govern.  In  a  government  purely  democratic, 
the  great  body  of  freemen  meet  in  one  assembly  to  make 
and  execute  the  laws.  There  were  some  such  governments 
in  ancient  Greece;  but  they  necessarily  comprised  small 
territories,  scarcely  more  than  a  single  town.  The  freemen 
of  a  state  could  not  all  meet  in  a  single  assembly. 

8.  A  Republic  is  that  kind  of  democracy  in  which  the 
power  to  enact  and  execute  the  laws  is  exercised  by  repre- 
sentatives, who  are  persons  elected  by  the  people  to  act  for 
them.  The  people  not  only  enact  the  laws  and  execute 
them  through  the  representatives  whom  they  elect,  but 
also  adopt  their  own  constitution  or  form  of  government, 
and  thus  all  power  comes  from  the  people,  the  government 
being  properly  called  a  representative  democracy.  A  re- 
public is  sometimes  also  called  a  commonwealth,  because 
its  object  is  the  common  happiness  of  all. 

9.  In  this  Country  the  people  are  everywhere  under  two 
governments,  the  State  and  the  National  Government. 
The  United  States  is  a  republic,  and  so,  also,  is  each  State. 
Each  State  has  given  up  to  the  Nation  those  powers  and 
duties  which  naturally  belong  to  a  nation  in  its  relations 
with  foreign  powers,  as  the  right  to  make  war  or  treaties, 
and  also  has  given  up  the  power  to  make  laws  on  subjects 
in  which  all  the  people  in  the  country  are  interested 
together,  as  commerce,  the  coining  of  money,  and  patents. 
But  the  State  retains  all  the  powers  it  has  not  given  up, 
and  both  State  and  National  Governments  are  independent 
of  each  other,  each  in  its  own  sphere.  The  Territories, 
uutil  they  become '  States,  are  under  th^  Tlnit^d  States 


22  Principles  of  Gomrnment. 

Government.  It  grants  them,  to  a  certain  extent,  through 
Congress,  self-government,  on  the  plan  of  the  State  govern- 
ments, but  it  can  take  it  away  at  any  time. 


Kinds  of  GovEENMEisrT. 


L  MONARCHY ;   this  may  be, 

1.  As  TO  POWEE, 

j  1.  Absolute,  or 
]  2.   Limited. 

2.  As  TO  Title, 

j  1.  Hereditary,  or 
(2.  Elective. 
II.  ARISTOCRACY; 
III,  DEMOCRACY ;   this  may  be, 

1.  Pure  Democracy,  or 
Republic. 


\i 


DIYISION  n. 

State   Governments. 


SECTION  I.— INTRODUCTORY. 

Their  Basis,  the  Constitution;  Elections;  Three  Depart- 
ments. 


CHAPTER  IV. 

CONSTITUTIONS  :  THEIR  NATURE,  OBJECT,  AND  ESTAB- 
LISHMENT. 

1.  Republic  the  Best  Governmeiit. — Of  all  the  different 
forms  of  government  which  have  existed,  a  republican 
government,  on  the  plan  of  that  which  has  been  estab- 
lished in  this  country,  is  believed  to  be  best  adapted  to 
secure  the  liberties  of  a  people,  and  to  promote  the  gen- 
eral welfare.  Under  the  reign  of  a  wise  and  virtuous 
ruler,  the  rights  of  person  and  property  may  be  fully  en- 
joyed, and  the  people  may  be  in  a  good  degree  prosperous. 
But  the  requisite  virtue  and  wisdom  combined  have  seldom 
been  found  in  any  one  man  (i.e.,  a  monarchy),  or  a  body  of 
men  (i.e.,  an  aristocracy).  And,  as  we  in  this  country 
believe,  experience  has  proved  that  the  objects  of  civil 
government  may  be  best  secured  by  a  written  constitution 
founded  upon  the  will  or  consent  of  the  people.  Each 
State  in  the  Union  has  such  a  constitution,  and  the  Nation 
itself  has  one. 

2.  Constitution. — The  woid  constitute  is  from  the  Latin, 


24  State  Governments. 

and  signifies  to  set,  to  fix,  to  establish.  Constitution,  when 
used  in  a  political  sense,  means  the  established  form  of 
government  of  a  state.  In  a  free  government,  like  ours,  it 
is  properly  called  the  political  law,  being  established  by 
the  people  as  a  body  politic.  (Page  14,  §  3.)  It  is  also 
called  the  fundamental  law,  because  it  is  the  foundation 
of  all  other  laws  of  the  state,  and  of  all  the  powers  of  the 
state,  legislative,  executive,  and  judicial. 

3.  Nature. — A  constitution  is  in  the  nature  of  an  agree- 
ment between  a  whole  community,  or  body  politic,  and  each 
of  its  members.  This  agreement  or  contract  implies  that 
each  one  binds  himself  to  the  whole,  and  the  whole  bind 
themselves  to  each  one,  that  all  shall  be  governed  by  cer- 
tain laws  and  regulations  for  the  common  good. 

4.  Convention. — In  forming  a  constitution,  the  people 
must  act  collectively.  But  their  number  is  too  large  to 
meet  in  a  single  assembly.  Therefore  they  choose  a  small 
number  to  act  for  them.  One  or  more  are  chosen  in  each 
county,  or  smaller  district,  and  are  called  delegates.  A 
delegate  is  a  person  appointed  by  another  with  power  to 
transact  business  as  his  representative.  The  assembly  com- 
posed of  the  delegates  so  elected  is  called  a  convention :  a 
name  given  to  most  public  meetings  other  than  legislative 
assemblies.  The  convention  draws  up  in  proper  form  a 
paper  containing  the  fundamental  laws  and  general  form 
of  government,  under  which  it  thinks  the  people  wish  to 
be  governed. 

6.  Adoption  by  People. — But  what  has  thus  been  pre- 
pared by  the  convention  is  not  yet  a  constitution.  It  is 
only  a  draft  of  one,  and  cannot,  in  general,  become  a  con- 
stitution without  the  consent  of  the  people  to  be  given  at 
an  election.  If  a  majority  of  the  persons  voting  at  such 
election  vote  in  favor  of  the  proposed  constitution,  it  is 
adopted,  and  becomes  the  constitution  of  the  State. 


Introductory, 


6.  Amendment. — A  constitution  usually  provides  for  its 
own  amendment.  Amendments  are,  generally,  proposed 
and  passed  by  the  legislature,  sometimes  on  two  successive 
years,  and  then  submitted  to  the  people. 

7.  Value. — One  of  the  most  valuable  rights  of  the  peo- 
ple under  a  free  government  is  the  right  to  have  a  con- 
stitution of  their  own  choice.  Indeed  it  is  in  this  right 
that  their  freedom  principally  consists.  It  is  by  the  con- 
stitution that  their  rights  are  secured.  The  legislature 
can  pass  no  laws  that  the  constitution  forbids,  and  if  they 
should  enact  unjust  and  oppressive  laws,  the  people,  having 
by  their  constitution  reserved  the  right  to  displace  them, 
may  do  so  by  electing  others  in  their  stead.* 

8.  Other  Governments. — In  an  absolute  monarchy  the 
people  have  neither  the  right  to  establish  their  own  form 
of  government,  nor  the  right  to  elect  their  law-makers. 
The  will  of  the  monarch  is  the  only  law.  In  a  limited 
monarcliy  they  have  some  political  rights.  In  Great 
Britain  the  people  elect  representatives  to  the  House  of 
Commons,  which  is  the  most  important  part  of  the  legisla- 
ture; but  they  did  not  originally  establish  the  form  of 
government.  The  English  have  no  written  constitution. 
What  is  called  the  English  constitution  consists  of  the 
body  of  fundamental  laws,  principles,  and  customs  which 
in  the  course  of  centuries  have  become  securely  fixed.  But 
Parliament,  the  English  law-making  body,  has  the  power 
to  make  any  law  it  sees  fit. 

*It  would  seem  to  follow  from  this  that  the  people  of  any  State, 
having  the  right  to  select  their  own  form  of  government,  might,  if 
they  wished,  choose  any  form;  for  example,  a  monarchy.  But  it 
must  be  remembered  that  this  country  is  a  nation,  and  not  a  collec- 
tion of  States,  and  that  every  state  constitution  is  subject  to  the 
United  States  Constitution,  which  has  guaranteed  to  every  State  in 
the  Union  a  republican  government,  or,  in  otii^r  WQrds,  fQrl)J(ideo 
them  to  establish  any  other  fw-w 


26  Btate  Governments, 


CHAPTER  V. 

QFALIFICATIOKS  OF  ELECTORS. 

1.  Electors. — One  of  the  first  provisions  usually  inserted 
in  the  constitution  of  a  free  state  is  that  which  declares 
who  shall  be  allowed  to  take  a  part  in  the  government; 
that  is,  to  whom  the  political  power  shall  be  intrusted. 
The  political  power  of  the  people  consists  chiefly  in  the 
right  to  vote,  called  the  right  of  suffrage.  The  constitu- 
tion regulates  this,  and  does  not  give  it  to  every  one  in 
the  state,  but  only  to  such  as  are  qualified  to  exercise  it 
understandingly.  Those  who  have  the  right  of  suffrage 
are  called  electors."^  When,  therefore,  we  speak  of  the  people 
politically,  we  mean  those  only  who  are  qualified  electors. 

2.  Age. — An  elector  must  be  twenty-one  years  of  age. 
Before  that  age  young  men  have  not  the  necessary  knowl- 
edge and  judgment  to  act  with  discretion.  Some  are 
competent  at  an  earlier  age;  but  a  constitution  can  make 
no  distinction  between  citizens.  It  has,  therefore,  in  ac- 
cordance with  the  general  opinion,  fixed  the  time  at  the 
ago  of  twenty-one  when  men  shall  be  deemed  capable  of 
exercising  the  rights  and  performing  the  duties  of  freemen. 

3.  Sex. — It  is  a  general  rule  that  no  female  can  vote. 
The  question  is  now  being  agitated  in  some  quarters 
whether  they  should  not  be  allowed  to. 

4.  Residence. — That  a  man  may  vote  understandingly, 
he  must  have  resided  long  enough  in  the  State  to  have 
become  acquainted  with  its  government  and  laws,  and  to 

*  These  are  not  Presidential  Electors.     The  word  is  used  here  in 
a  general  sense     For  Presidential  Electors,  see  page  161. 


Introductory,  27 


have  learned  the  character  and  qualifications  of  the  per- 
sons for  whom  he  votes.  State  constitutions  therefore  re- 
quire that  electors  shall  have  resided  in  the  State  for  a 
specified  period  of  time,  varying,  however,  in  the  different 
States  from  three  months  to  two  years.  In  most  of  the 
States  they  must  also  have  resided  for  some  months  in  the 
county  or  district,  and  be  residents  of  the  town  in  which 
they  offer  to  vote. 

5.  Aliens. — Persons  born  in  foreign  countries  are  aliens, 
and  have  no  right  to  vote,  though  residing  here.  They 
are  presumed  to  have  too  little  knowledge  of  our  govern- 
ment, and  to  feel  too  little  interest  in  public  affairs,  on 
their  first  coming  hither,  to  be  duly  qualified  for  the  exer- 
cise of  political  power.  Laws,  however,  have  been  enacted 
for  naturalizing  aliens  after  they  shall  have  resided  here 
long  enough  to  become  acquainted  with  and  attached  to 
our  government.  By  naturalization  they  become  citizens, 
entitled  to  all  the  privileges  of  native  or  natural-born  citi- 
zens.    (See  page  141.) 

6.  Criminals. — It  is  provided  also  in  state  constitutions 
that  electors  convicted  of  infamous  crimes  are  disfran- 
chised. Franchise  is  a  right  or  privilege.  The  right  of 
voting  is  called  the  elective  franchise ;  and  an  elector 
when  deprived  of  this  privilege  is  disfranchised.  Men 
guilty  of  high  crimes  are  ddcmed  unfit  to  be  intrusted 
with  so  important  a  duty  as  that  of  electing  the  persons 
who  are  to  make  and  execute  the  laws  of  the  State.  It 
is  provided,  however,  that  if  such  persons  are  pardoned 
befcre  the  expiration  of  the  term  for  which  they  were  sen- 
tenced to  be  imprisoned,  their  forfeited  rights  are  restored. 

7.  Idiots  and  lunatics  have  no  right  to  vote,  for  the 
reason  that  they  cannot  use  it  understandingly. 

8.  Property. — In  general  it  is  not  now  necessary  for  an 
elector  to  own  property.     Bij  the  earliest  constitutions  of 


28  Btate  Governments. 

many  of  the  old  States,  electors  were  required  to  own 
property,  or  to  have  paid  rents  or  taxes,  to  a  certain 
amount.  In  the  constitutions  of  the  newer  States,  and  the 
amended  constitutions  of  the  old  States,  property  has  not 
been  made  a  qualification  of  an  elector.  Paupers,  however^ 
have  no  vote. 

9.  Color. — There  is  now  no  distinction  of  color  in  the 
right  to  vote,  and  the  negro  has  the  same  privilege  as  the 
white  man  in  all  the  States.  Up  to  the  adoption  of  the 
fifteenth  amendment  to  the  Constitution  of  the  United 
States,  in  1870,  colored  people,  whether  slave  or  free,  could 
not  vote  in  the  Southern  States,  and  in  only  three  or  four 
of  the  Northern  States. 

Thus  it  will  be  seen  that  while  all  the  people  in  a  State 
have  civil  rights,  less  than  half  have  political  rights. 


CHAPTER  VI. 


ELECTIONS. 


1.  When  Held. — For  the  convenient  exercise  of  politi- 
cal power,  as  well  as  for  the  purposes  of  government  gen- 
erally, the  territory  of  a  State  is  divided  into  districts  of 
small  extent.  ,  A  State  is  divided  into  counties,  and  these 
are  divided  into  towns  or  townships.  The  people  of  every 
county  and  every  town  have  power  to  manage  their  local 
concerns.  The  electors  of  the  State  meet  every  year  in 
their  respective  towns  for  the  election  of  officers.  Gov- 
ernors in  most  of  the  States  are  elected  every  two  or  four 
years,  but  many  officers  elected  by  the  people  are  chosen 
©very  year.    AH  the  electors  of  the  State  may  vote  fur 


Introductory,  29 


state  officers,  but  only  residents  of  the  respective  towns  or 
counties  can  vote  for  the  town  and  county  officers.  In  most 
States  the  general  state  election  is  held  in  October  or 
November.    . 

2.  Inspectors  of  Election. — Elections  are  conducted  by 
persons  designated  by  law,  or  chosen  by  the  electors  of  the 
town,  for  that  purpose.  It  is  their  duty  to  preserve  order, 
and  to  see  tlvit  the  business  is  properly  done.  They  are 
usually  called  jiidges  of  election  or  inspectors  of  election. 
Persons  also  (usually  two)  serve  as  clerks.  Each  clerk  keeps 
a  list  of  the  names  of  the  persons  voting,  which  is  called  a 
poll-list.  Poll,  which  is  said  to  be  a  Saxon  word,  signifies 
head,  and  has  come  to  mean  person.  By  a  f  iii-ther  change 
it  has  been  made  to  signify  an  election  or  the  place  where 
the  voting  is  done. 

3.  Voting. — The  polls,  i.e.  the  voting  places,  are  gen- 
erally open  one  day,  from  sunrise  to  sunset.  The  inspec- 
tors receive  from  each  voter  a  ballot,  which  is  a  piece  of 
paper  containing  the  names  of  the  persons  voted  for,  and 
the  title  of  the  office  to  which  each  of  them  is  to  be 
elected.  The  voting  in  most  of  the  States  is  by  ballot, 
but  in  one  or  two  it  is  viva  voce ;  that  is,  by  the  elector 
speaking  the  name  of  the  person  for  whom  he  votes. 

4.  Challenging. — If  no  objection  is  made  to  an  elector's 
voting,  the  ballot  is  put  into  the  box  and  the  clerks  enter 
his  name  on  the  poll-list.  If  the  inspectors  suspect  that  a 
person  offering  to  vote  is  rot  a  qualified  elector,  they  may 
question  him  upon  his  oatli  in  respect  to  his  age,  the  term 
of  his  residence  in  the  State  and  county,  and  citizenship. 
Any  bystander  also  may  question  his  right  to  vote.  This 
is  called  challenging.  A  person  thus  challenged  is  not 
allowed  to  vote  until  the  challenge  is  withdrawn,  or  his 
qualifications  are  either  proved  by  the  testimony  of  other 
persons  or  sworn  to  by  himself. 


so  state  Governments, 

6.  Registration. — In  a  few  States  the  voters  are  regis- 
tered, especially  in  the  large  cities.  A  list  is  made  some 
days  before  the  election  of  the  names  of  all  who  present 
themselves  and,  upon  examination,  are  shown  to  be  quali- 
fied electors;  and  those  only  whose  names  have  been  regis- 
tered are  allowed  to  vote  on  election-day.  Thus  many 
interruptions  to  voting  by  the  examination  of  voters  at  the 
polls,  and  much  illegal  voting,  are  prevented. 

6.  Canvassing. — After  the  polls  are  closed,  the  box  is 
opened  and  the  ballots  are  counted.  This  is  called  can- 
vassing the  votes.  If  the  number  of  ballots  agrees  with 
the  number  of  names  on  the  poll-lists,  it  is  presumed  no 
mistake  has  been  made  either  in  voting  or  in  keeping  the 
lists.  If  there  are  more  ballots  than  names,  in  some  States 
the  election  will  be  void,  in  others  a  number  of  ballots 
equivalent  to  the  excess  will  be  drawn  out  and  destroyed. 
If  the  election  is  one  for  the  choosing  of  town  officers,  it  is 
there  determined  who  are  elected,  and  their  election  is 
publicly  declared.  The  election  of  county  and  state  offi- 
cers cannot  be  determined  by  the  town  canvassers.  A 
statement  of  the  votes  given  in  each  town  for  the  persons 
voted  for  is  sent  to  the  county  canvassers,  who,  from  the 
returns  of  votes  from  all  the  towns,  determine  and  declare 
the  election  of  the  officers  chosen  for  the  county.  To 
determine  the  election  of  state  officers,  and  of  such  others 
fts  are  elected  for  districts  comprising  more  tlian  one 
county,  a  statement  of  the  votes  given  for  the  several  can- 
didates is  sent  by  the  several  boards  of  county  canvassers 
to  the  state  canvassers,  who,  from  the  returns  of  votes  from 
the  several  counties,  determine  the  election  of  the  state 
officers. 

7.  Nnmber  Necessary. — In  most;  of  the  States  persons 
are  elected  by  a  plurality  of  votes.  An  election  hj  plural- 
ity is  when  the  person  elected  has  received  a  higher  num- 


Introductory,  31 


ber  of  Yotes  than  any  other,  though  such  number  be  less 
than  half  of  all  the  votes  given.  Suppose,  for  example, 
three  candidates  receive  1000  votes:  One  receives  450; 
another,  300;  the  third,  250  votes.  The  first,  having  the 
highest  number,  though  not  a  majority,  is  elected.  In 
most  of  the  States  of  New  England  a  majority — that  is, 
more  than  one  half  of  all  the  votes  given — is  necessary  to 
the  election  of  many  of  the  higher  officers.  The  least 
number  of  votes  out  of  1000  by  which  a  person  can  be 
elected  by  this  rule  is  501. 

8.  Objections. — Either  of  these  modes  is  open  to  objec- 
tion. When  a  simple  plurality  effects  an  election,  1000 
votes  may  be  so  divided  upon  three  candidates  as  to  elect 
one  by  334  votes;  or  of  four  candidates,  one  may  be  elected 
by  251  votes,  and  against  the  wishes  of  nearly  three  fourths 
of  the  electors.  The  objection  to  the  other  mode  is  that 
if  no  person  receives  a  majority  of  all  the  votes,  another 
election  must  be  held.  Numerous  trials  have,  in  some  in- 
stances, been  necessary  to  effect  a  choice;  and  the  people 
of  a  district  have  remained  for  a  time  without  a  representa- 
tive in  the  state  or  national  legislature. 


r 


CHAPTER  VII. 

DIVISION  OF  POWERS  OF  GOVERNMENT. 

1.  Three  Departments. — Government  is  divided  into 
three  distinct  divisions,  or,  in  other  words,  sovereign 
power  may  be  exercised  in  three  directions:  in  making 
laws,  in  enforcing  them,  and  in  judging  whether  par- 
ticular   cases    come    under    certain    laws.      In    all    free 


32  Btate  Governments. 

countries  these  powers  are  exercised  by  three  separate 
departments,  called  the  legislative,  executive,  and  judicial 
departments.  In  a  monarchy,  thongh  they  may  exist,  the 
other  two  are  more  or  less  under  the  control  of  the 
executive  department,  the  monarch.  In  this  country  the 
three  departments  exist  in  every  State  and  are  kept  dis- 
tinct from  each  other. 

2.  Legislative. — The  legislative  department  is  that  by 
which  the  laws  of  the  State  are  made,  and  is  called  the 
legislature.  Its  object  is  to  make  such  laws  as  the  consti- 
tution does  not  provide  for.  The  constitution  establishes 
not  only  the  form  and  the  departments  of  government,  but 
also  certain  broad  principles  of  law,  which  the  legislature 
cannot  violate;  but  it  leaves  to  the  legislature  the  making 
of  the  particular  laws  to  carry  out  those  principles  in 
detail,  and  there  are  many  subjects  on  which  the  legisla- 
ture is  unrestrained.  It  would  be  impossible  for  a  State  to 
adopt,  as  a  constitution,  a  system  of  laws  that  would  not 
need  change  and  addition. 

3.  Its  Divisions. — The  legislature  is  composed  of  two 
bodies,  or  houses,  as  they  are  called,  the  members  of  each 
being  elected  by  the  people.  Both  must  agree  to  a  meas- 
ure before  it  becomes  a  law.  In  limited  monarchies  where 
one  branch  of  the  legislature  is  elective,  tlie  other  is  an 
aristocratic  body,  composed  of  men  of  wealth  and  dignity, 
as  the  British  House  of  Lords. 

4.  Executive. — The  executive  department  is  intrusted 
with  the  power  of  executing,  or  carrying  into  effect,  the 
laws  of  the  State.  Its  principal  officer  is  a  governor,  who 
is  elected  by  the  people.  He  is  assisted  by  a  number  of 
other  officers,  some  of  whom  are  elected  by  the  people; 
others  are  appointed  in  such  manner  as  the  constitution  or 
laws  prescribe. 

6.  Judicial — The  judicial  department  is  that  by  which 


Introductory.  33 


justice  is  administered  to  the  ,  citizens.  Its  duty  is  to 
decide  the  meaning  of  laws,  and  whether  particular  case3 
fall  within  them.  It  embraces  the  several  courts  of  the 
State.  All  judges  and  justices  of  the  peace  are  judicial 
officers. 

6.  Separation. — Experience  has  shown  the  propriety  of 
dividing  the  civil  power  into  these  three  departments,  and 
of  confining  the  officers  of  each  department  to  the  powers 
and  duties  belonging  to  the  same.  Those  who  make  the 
laws  should  not  exercise  the  power  of  executing  them;  nor 
should  they  who  either  make  or  execute  the  laws  sit  in. 
judgment  over  those  who  are  brought  before  them  for 
trial.  It  would  give  too  much  power  to  one,  and  would 
endanger  the  liberty  of  the  people.  Yet  in  many  instances 
this  principle  is  violated  to  a  degree.  In  many  States  the 
governor  m  List  approve  a  measure  before  it  can  become  a 
law,  and  thus  he  has  legislative  power.  In  some  he  ap- 
points the  judges,  and  so  has  judicial  power.  In  some  the 
legislature  in  certain  cases  elects  the  governor,  and  thus 
has  some  control  over  the  executive  department. 


Depaktments  of  Goveekment. 


I.  LEGISLATIVE— Law-Making:  consists  of 
(  1.  Senate, 
•j  2.  House  of  Eepresentatives,  and 

(  3.    Governor  (in  many  states). 

11.  EXECUTIVE— Law-Executing:  represented  by 

1.  Governor,  and 

2.  All  other  executive  officers. 

III.  JtJDICIAL— Law-Interpreting  and  Applying:  con- 
sists of 
All  the  judges. 


34  &tate  Gomrnments. 


SECTIOlSr  11. 
Legislative  Department. 


CHAPTER  YIII. 

legislatuke:  how  constituted. 

1.  Two  Houses. — The  legislature  of  every  State  in  the 
Union  is  composed  of  two  houses — a  senate  and  a  liouse  of 
representatives,  sometimes  called  the  iipper  and  loiver 
house.*  In  most  of  the  States  the  two  houses  together 
are  called  the  general  assembly. 

a.  Senate. 

2.  Character. — The  senate,  as  well  as  the  other  house, 
is  a  representative  body,  its  members  being  elected  by  the 
people  to  represent  them.     It  is  a  much  smaller  body  than 

*  Though  both  are  representative  bodies,  only  tlie  lower  house  is 
called  the  "House  of  Representatives."  The  reason  for  this  may 
be;  Under  the  governments  of  the  Colonies,  while  yet  subject  to 
Great  Britain,  there  was  but  one  representative  assembly.  The 
other  branch  of  the  legislature  was  called  a  council,  consisting  of  a 
small  number  of  men  who  were  appointed  by  the  King.  After  the 
Colonies  became  free  and  independent  States  the  senate  was  substi- 
tuted for  the  old  council,  and  the  other  house  kept  its  old  name. 

The  lower  house  in  the  States  of  New  York,  Wisconsin,  Nevada, 
and  California  is  called  the  assembly;  in  Maryland,  Virginia,  and 
"West  Virginia,  the  house  of  delegates ;  in  North  Carolina,  the  house 
af  commons ;  and  in  New  Jersey,  the  general  assembly. 


Legislative  Department,  35 

the  lower  house,  and  consists,  generally,  of  from  twenty-five 
to  fifty  members  in  the  different  States.  It  was  designed 
to  be,  and  is,  a  more  select  body,  composed  of  men  chosen 
with  reference  to  their  superior  ability  or  their  greater  ex- 
perience in  public  affairs. 

3.  Terms. — Senators  are  chosen  for  terms  of  four  years 
in  about  half  the  States;  in  the  rest  for  terms  of  one,  two, 
or  three  years.  In  most  of  the  States  in  which  senators 
are  elected  for  longer  terms  than  one  year,  they  are  not  all 
elected  at  the  same  time.  They  are  divided  into  classes, 
and  those  of  one  class  go  out  of  office  one  year,  and  those 
of  another  class  another  year;  so  that  only  a  part  of  the 
senators  are  elected  every  year,  or  every  two,  or  three,  or 
four  years. 

4.  Apportionment. — This  means  the  division  of  the 
State  into  portions;  from  each  portion  its  inhabitants  elect 
one  senator.  Senators  are  differently  apportioned  in  dif- 
ferent States.  In  some  States  they  are  apportioned  among 
the  several  counties,  so  that  the  number  to  be  elected  in 
each  county  shall  be  in  proportion  to  the  number  of  its 
inhabitants.  In  others  they  are  elected  by  districts,  equal 
in  number  to  the  number  of  senators  to  be  chosen  in  the 
State,  and  a  senator  is  elected  in  each  district.  The  dis- 
tricts are  to  contain,  as  nearly  as  may  be,  an  equal  num- 
ber of  inhabitants,  and  sometimes  they  comprise  several 
counties. 

h.  House  of  Representatives, 

5.  Character. — This  house  also  is  elective,  and  is  a  largei 
body  than  the  senate.  It  consists,  generally,  of  from  one 
hundred  to  two  hundred  members  in  the  different  States. 

6.  Terms. — In  most  of  the  States  they  are  elected  for 
two  years'  terms;  in  the  others,  chiefly  the  Eastern  States, 
annually. 


36  ^tate  Governments. 

7.  Apportionment. — Since  the  number  of  representa- 
tiyes  is  much  larger  than  that  of  senators,  the  districts 
from  which  thej  are  elected  will,  in  the  same  State,  be 
much  smaller.  Eepresentatives  are  apportioned  among 
the  counties  in  proportion  to  the  population  in  each.  In 
some  States  they  are  elected  in  districts  of  equal  popula- 
tion, counties  being  sometimes  divided  in  the  formation  of 
districts.  In  the  New  England  States  representatives  are 
apportioned  among  the  towns. 

c.  Provisions  affecting  loth. 

8.  Census. — The  different  modes  of  apportioning  mem- 
bers of  the  legislature  have  in  view  the  same  object — equal 
representation;  that  is,  giving  a  member  to  the  same  num- 
ber of  inhabitants  throughout  the  State.  But  in  some 
counties  the  population  increases  more  rapidly  than  in 
others.  The  representation  then  becomes  unequal,  being 
no  longer  in  proportion  to  population.  In  order  to  keep 
the  representation  throughout  the  State  as  nearly  equal  as 
possible,  the  constitution  requires  that,  at  stated  times, 
the  people  of  the  State  shall  be  numbered,  and  a  new 
apportionment  of  senators  and  representatives  be  made 
among  the  several  counties  according  to  the  number  of  in- 
habitants in  each  county;  or  if  the  State  is  one  in  which 
members  of  the  legislature  are  chosen  in  districts,  a  new 
division  of  the  State  is  made  into  districts.  This  enumera- 
tion or  numbering  of  the  people  is  called  the  census,  and 
is  taken  in  some  States  every  ten  years,  in  others  oftener. 
But  many  States  depend  on  the  census  which  the  United 
States  takes  every  ten  years. 

9.  Qualificaticns. — The  constitution  also  prescribes  the 
qualifications  of  senators  and  representatives.  If,  as  quali- 
fications for  an  elector,  full  age,  citizenship,  and  a  con- 
^derable  term  of  residence  in  the  State  and  county  are 


Legislatwe  Department,  37 

properly  required,  as  we  have  seen  (page  26),  tliey  must 
be  at  least  equally  necessary  for  those  who  make  the  laws. 
In  no  State,  therefore,  are  any  but  qualified  electors  eligible 
to  the  office  of  senator  or  representative.  In  some  States 
greater  age  and  longer  residence  are  required;  and  in  some 
the  age  and  term  of  residence  have  been  still  further  in- 
creased in  the  case  of  senators.  The  property  qualification 
formerly  necessary  for  members  of  the  legislature,  as  well 
as  for  voters,  has  been  almost  entirely  abolished. 

10.  Vacancy. — If  a  member  of  the  legislature  dies  or 
resigns  his  office  before  the  expiration  of  the  term  for 
which  he  was  chosen,  the  vacancy  is  filled  by  the  election 
of  another  person  at  the  next  general  election,  or  at  a 
special  election  called  for  that  purpose,  or  in  such  other 
manner  as  the  constitution  may  provide.  But  a  person 
chosen  to  fill  a  vacancy  holds  the  office  only  for  the  remain- 
der of  the  term  of  him  whose  place  he  was  chosen  to  supply. 

11    Salary. — Each  member  has  a  salary,  fixed  by  law. 


CHAPTER  IX. 

MEETINGS  AKD  ORGAKIZATIOJS". 

1.  How  Often. — The  legislature  meets  as  often  as  the 
constitution  requires:  in  about  half  of  the  States  annually, 
m  the  others  biennially,  or  once  in  two  years.  A  legisla- 
tive session  includes  the  daily  meetings  of  a  legislature 
from  the  time  of  its  first  assembling  to  the  day  of  final 
adjournment.  Thus  we  say  the  session  commenced  in 
January  and  ended  in  March.  The  word  session  has  refer- 
ence also  to  a  single  sitting,  from  the  hour  at  which  the 
members  ^.ssembleon  any  day  to  the  time  of  adjournment 


38  State  Oowrnments, 

on  tlie  same  day.  Thus  we  say  the  legislature  holds  a 
daily  session  of  four  hours;  or,  it  holds  two  sessions  a  day, 
as  the  case  may  be. 

2.  Place. — Meetings  of  the  legislature  are  held  at  a 
certain  place  permanently  fixed  by  law  of  the  State,  at  which 
the  principal  state  officers  keep  their  offices.  Hence  it  is 
called  the  seat  of  government,  or,  perhaps  more  frequently, 
i\iQ  ca2ntal  of  the  State.  Cajntal  is  from  the  Latin  caput, 
the  head,  and  has  come  to  mean  chief,  or  the  highest.  In 
this  country  the  word  capital,  applied  to  a  city,  now  gen- 
erally indicates  the  seat  of  government. 

3.  Organization. — When  the  two  houses  have  assemblec^ 
in  their  respective  chambers,  and  the  oath  of  office  has 
been  administered,  each  house  proceeds  to  organize.  This 
consists  in  appointing  proper  officers,  and  in  determining 
the  right  of  members  to  their  seats.  Each  house  is  the 
sole  judge  of  who  has  been  elected  to  it.  The  first  officer 
elected  is  the  presiding  officer,  or  chairman,  who  is  usually 
called  speaker.  The  lieutenant -governor^  in  States  in 
which  there  is  one,  presides  in  the  senate,  and  is  called 
president  of  the  senate.  In  the  absence  of  the  presiding 
officer,  a  temporary  speaker  or  president  is  chosen,  who  is 
called  speaker,  or  president,  pro  tempore,  commonly  ab- 
breviated pro  tern,,  which  is  a  Latin  phrase,  meaning /or 
*Jie  time. 

4.  Presiding  Officer's  Duty. — The  duty  of  the  person 
presiding  is  to  keep  order  and  to  see  that  the  business  of 
the  house  is  conducted  according  to  certain  established 
rules.  When  a  vote  is  to  be  taken  he  puts  the  question, 
and  when  taken  he  declares  the  question  to  be  carried  or 
lost.  This  part  of  a  speaker's  business  is  similar  to  that  of 
the  chairman  of  an  ordinary  public  meeting. 

5.  Minor  Officers. — The  other  officers  chosen  by  each 
house  are:  a  clerk,  to  keep  a  record  or  journal  of  its  pro- 


Legislative  Department.  39 

feedings,  to  take  charge  of  papers,  etc.;  a  sergeant-at- 
arms,  to  arrest  members  and  other  persons  guilty  of  dis- 
orderly conduct,  to  compel  the  attendance  of  absent 
members,  and  to  do  other  business  of  a  like  nature;  also 
one  or  more  door-keepers.  The  officers  mentioned  in  this 
section  are  not  chosen  from  the  members  of  the  house. 

6.  Quorum. — The  constitution  determines  what  portion 
of  the  members  shall  constitute  a  quorum  to  do  business, 
i.e.  how  many  must  be  present.  Quorum  is  the  Latin  of 
the  English  words  of  whom,  and  has  strangely  come  to 
signify  the  number  or  portion  of  any  body  of  men  who 
have  power  to  act.  In  most  States  a  majority  will  consti- 
tute a  quorum;  in  some  a  greater  number  is  required,  two 
thirds  or  three  fifths. 

7.  Proceedings  Open. — Constitutions  generally  require 
also  that  the  proceedings  of  legislative  bodies  shall  be  open 
to  public  inspection.  The  doors  may  be  closed  against 
spectators  only  when  the  public  good  shall  require  secrecy. 
And  that  the  people  may  be  fully  informed  of  what  is 
done,  each  house  is  required  to  keep  and  publish  a  journal 
of  its  proceedings. 

8.  Interruptions. — Provision  is  also  made,  either  by  th« 
constitution  or  by  law,  against  injury  or  interruption  to 
the  business  of  the  legislature.  Members  may  not,  by 
any  prosecution  at  law,  except  for  crimes  and  misdemean- 
ors, be  hindered  during  their  attendance  at  the  sessions  of 
the  legislature,  nor  in  going  to  or  returning  from  the  same. 
Each  house  may  compel  the  attendance  of  absent  members. 
It  may  for  good  cause  expel  a  member  and  punish  not  only 
its  members  and  officers,  but  other  persons,  for  disorderly 
conduct  or  for  obstructing  its  proceedings. 


40  State  Governments, 


CHAPTER  X. 

MANNER  OF  ENACTING  LAWS. 

1.  Power. — The  legislature  of  every  State  has  power  to 
enact  any  law,  on  any  subject,  not  forbidden  by  the  Con- 
stitution of  the  United  States  or  its  own  constitution,  and 
not  at  variance  with  any  law  of  Congress.  In  this  par- 
ticular the  extent  of  its  power  is  broader  than  that  of  Con- 
gress, for  the  latter  can  legislate  only  on  the  particular 
subjects  named  in  the  United  States  Constitution.  The 
subjects  which  the  United  States  Constitution  forbids  to 
the  state  legislatures  will  be  found  in  a  later  chapter 
(page  155).  The  state  constitutions  also  contain  prohibi- 
tions meant  to  restrain  the  legislature  from  making  oppres- 
sive laws,  or  such  as  would  endanger  the  people's  absolute 
rights.  (See  page  15,  §  5.)  If  any  laws  are  passed  con- 
trary to  these  constitutional  provisions,  they  will  be  void 
and  of  no  effect. 

2.  Rules. — Constitutions  prescribe  no  method  of  pass- 
ing laws.  They  leave  it  entirely  to  the  legislature  itself. 
But  it  would  be  impossible  for  sudi  a  body  to  act  without 
some  order,  and  so  each  legislature  establishes  certain 
rules,  which  are  seldom  departed  from.  But,  though 
ordinarily  followed,  these  rules  may  be  departed  from, 
and  the  law  will  be  just  as  valid,  provided  a  quorum  is 
present  and  a  sufficient  number  vote  for  it. 

3.  Governor's  Message. — When  the  two  houses  are  duly 
organized  and  ready  for  business,  the  governor  sends  to 
both  houses  a  written  communication  called  a  mesfiage,  in 
which,  as  the  constitution  requires,  he  gives  to  the  legisla- 


Legislative  Department,  41 

ture  information  of  the  condition  of  the  affairs  of  the 
State,  and  recommends  such  measures  as  he  judges  neces- 
sary and  expedient.  The  message  is  read  to  each  house  by 
its  clerk. 

4.  Other  Measures. — :But  the  measures  to  which  the 
governor  calls  the  attention  of  the  legislature  are  but  a 
small  portion  of  those  which  are  considered  and  acted 
upon.  Many  are  introduced  by  individual  members. 
Others  are  brought  into  notice  by  the  petitions  of  the  peo- 
ple in  different  parts  of  the  State.  Petition  generally 
signifies  a  request  or  prayer.  As  here  used,  it  means  a 
written  request  to  the  legislature  for  some  favor — generally 
for  a  law  granting  some  benefit  or  relief  to  the  petitioners. 
Petitions  are  sent  to  members,  usually  to  those  who  repre- 
sent the  counties  or  districts  in  which  the  petitioners  live, 
and  are  by  these  members  presented  to  the  house.  Laws 
may  be  introduced  in  either  house. 

0.  Committees. — The  subjects  to  be  acted  on  by  a  legis- 
lature are  very  numerous,  and  if  the  whole  house  carefully 
examined  each  measure  and  listened  to  all  the  reasons  why 
the  measure  was  necessary  it  could  not  finish  half  its  labor. 
So  committees  are  appointed  at  the  beginning  of  the  ses- 
sion, consisting  of  from  three  to  seven  members,  each  com- 
mittee having  charge  of  some  particular  subject:  such  as, 
the  committee  on  finance,  or  the  money  matters  of  the 
State,  called  the  ways  and  means  committee;  the  commit- 
tee on  agriculture;  on  manufactures;  on  railroads;  on 
education;  and  a  great  many  other  subjects.  As  soon  as  a 
measure  is  introduced  into  the  house  it  is  referred  to  its 
appropriate  committee,  to  examine  into  its  necessity  and 
report  to  the  house  the  result  of  the  examination.  These 
committees  are  so  numerous  that  every  member  is  on  at 
least  one  or  two,  and  are  called  standing  committees,  be 
cause  they  continue  through  the  session.     When  a  ques- 


42  State  Governments. 


tion  arises  haying  no  relation  to  any  particular  subject  on 
wliicli  there  is  a  standing  committee,  it  is  usually  re- 
ferred to  a  special  or  select  committee  appointed  to  con- 
sider this  particular  matter. 

6.  Committee  Meetings. — Committees  meet  in  private 
rooms  during  hours  wlicn  the  house  is  not  in  session;  and 
any  person  wishing  to  be  heard  in  favor  of  or  against  a 
proposed  measure  may  appear  before  the  committee  having 
it  in  charge.  Having  duly  considered  the  subject,  the 
committee  reports  to  the  house  the  information  it  has  ob- 
tained, with  the  opinion  whether  the  measure  ought  or 
ought  not  to  become  a  law.  Measures  reported  against  by 
committees  seldom  receive  any  further  notice  from  the 
house. 

7.  Bills. ^If  a  committee  reports  favorably  upon  a  sub- 
ject, it  usually  brings  in  a  bill  with  its  report  and  recom- 
mends its  passage.  A  hill  is  the  form  or  draft  of  a  law. 
Sometimes  it  is  prepared  in  correct  form  before  it  is  intro- 
duced into  the  house  or  referred  to  the  committee.  In 
other  cases,  as,  for  instance,  when  the  subject  is  brought 
before  the  house  by  petition,  the  committee  prepares  it. 

8.  Three  Readings. — A  bill  before  it  is  passed  is  read 
three  times,  on  three  separate  days.  In  some  legislatures 
the  rules  allow  the  first  and  second  readings  to  be  on  the 
same  day.  The  first  and  second  readings  consist  often  of 
merely  reading  the  title  or  the  enacting  clause.  Then  amend- 
ments to  it  may  be  introduced,  and  adopted  or  rejected. 
Finally  the  third  reading  is  had,  this  time  the  clerk  really 
reading  the  bill  except  where  it  is  a  long  one,  and  the  final 
vote  is  taken.  Debate  on  the  bill  is  not  usually  had  until 
after  the  second  reading.  There  are  a  great  many  rules 
covering  every  point  which  may  arise,  such  as  the  order  of 
business,  and  when  debate  snail  be  allowed;  and  these 
rules   are  usually  followed:   but    sometimes,  in  cases  of 


Legislative  Department.  43 

exigency,  all  the  rules  are  suspended  and  a  bill  is  intro- 
duced and  passed  immediately,  without  being  referred  to  a 
committee  or  even  being  read. 

9.  Passage. — When  the  final  vote  is  to  be  taken,  the 
speaker  puts  the  question:  "Shall  the  bill  pass?"  If  a 
majority  of  the  members  present  vote  in  the  affirmative 
(the  speaker  also  voting),  the  bill  is  passed;  if  a  majority 
vote  in  the  negative,  or  if  the  ayes  and  noes  are  equal,  the 
bill  is  lost.  In  a  senate  where  a  lieutenant-governor  pre- 
sides,'not  being  properly  a  member,  he  does  not  vote, 
except  when  the  ayes  and  noes  are  equal,  in  which  case 
there  is  said  to  be  a  tie ;  and  he  determines  the  question 
by  his  vote,  which  is  called  the  casting  vote.  In  some 
States,  on  the  final  passage  of  a  bill,  a  bare  majority  of  the 
members  present  is  not  sufficient  to  pass  it,  in  case  any 
members  are  absent.  The  constitutions  of  those  States 
require  the  votes  of  a  majority  of  all  the  members  elected  to 
each  house. 

10.  Other  House. — When  a  bill  has  passed  one  house  it 
is  sent  to  the  other,. where  it  passes  through  the  same 
forms  of  action;  that  is,  it  is  referred  to  a  committee,  re- 
ported by  the  committee  to  the  house,  and  is  read  three 
times  before  a  vote  is  taken  on  its  passage.  This  vote 
having  been  taken,  the  bill  is  returned  to  the  house  from 
which  it  was  received.  If  it  has  been  amended,  the 
amendments  must  be  agreed  to  by  the  first  house,  or  the 
second  must  recede  from  its  amendments,  or  the  amend- 
ments must  be  so  modified  as  to  secure  the  approval  of 
both  houses,  before  the  bill  can  become  a  law. 

11.  Veto. — But  in  many  of  the  States  a  bill,  when 
passed  by  both  houses,  is  not  yet  a  law.  As  the  two 
houses  may  concur  in  adopting  an  unwise  measure,  an 
additional  safeguard  is  provided  against  the  enactment  of 
bad  laws,  by  requiring  all  bills  to  be  sent  to  the  governor 


44  State  Governments. 

for  examination  and  approval.  If  he  approves  a  bill,  lie 
signs  it,  and  it  is  a  law;  if  he  does  not  sign  it,  it  is  not  a 
law.  In  refusing  to  sign  a  bill,  he  is  said  to  negative  or 
veto  the  bill.     Veto,  Latin,  means  /  forbid. 

12.  No  Absolute  Veto. — But  no  governor  has  full  power 
to  prevent  the  passage  of  a  law.  If  he  does  not  approve  a 
bill,  he  must  return  it  to  the  house  in  which  it  originated, 
stating  his  objections  to  it;  and  if  it  shall  be  again  passed 
by  both  houses,  it  will  be  a  law  without  the  governor's 
assent.  But  in  such  cases  greater  majorities  are  generally 
required  to  pass  a  law.  In  some  States  a  majority  of  two 
thirds  of  .the  members  present  is  necessary;  in  others,  a 
majority  of  all  the  members  elected.  In  some  States  if  the 
governor  does  not  return  a  bill  within  a  certain  number  of 
days,  it  becomes  a  law  without  his  signature  and  without 
being  considered  a  second  time. 

13.  Taking  Jlflfect. — Laws  become  operative  the  minute 
the  last  act  is  done;  in  those  States  where  the  governor 
must  approve  them,  the  minute  he  signs  his  name,  unless 
the  law  itself  provides  otherwise.  But  this  would  often 
create  great  hardship,  for  one  might  violate  a  law  before  he 
had  had  time  to  hear  of  it.  Therefore  constitutions  often 
provide  that  a  law  shall  not  take  effect  for  some  days  after 
its  passage,  or  the  law  itself  may  so  iDrovide. 


Executive  Department.  45 


SECTION  III. 
Executive  Department. 


CHAPTEE  XL 

STATE     OFFICERS. 

1.  Classification. — The  executive  officers  of  a  State  may 
be  divided  into  two  classes:  those  whose  duties  relate  to 
the  whole  State,  as  the  governor  or  the  attorney-general, 
and  those  whose  duties  relate  only  to  some  particular  por- 
tion of  it,  as  the  sheriffs.  The  first  class  are  elected  by  all 
the  people  of  the  State,  and  have  their  offices  at  the  capi- 
tal ;  the  latter  are  elected  by  the  people  of  the  particular 
district  (county,  town,  or  city),  and  have  their  offices  there. 
In  this  chapter  we  will  treat  only  of  the  first  class. 

2.  Governor. — The  chief  executive  officer  of  a  State  is 
the  governor.  In  a  monarchy  the  chief  executive  officer  is 
the  monarch  himself.  But  there  is  this  difference:  in  a 
monarchy  the  monarch  is  the  source  of  power,  and  all 
inferior  officers  are  his  agents  and  responsible  to  him  alone; 
in  a  republic  the  people  are  the  source  of  power,  and  in- 
ferior officers  are  their  agents  and  responsible  to  them  with 
the  governor,  and  not  to  him.  He  is  called  the  chief 
officer  because  he  has  the  highest  duties  to  perform. 

3.  Term. — The  governor  is  elected  by  the  people,  for 
different  terms  in  the  different  States.  In  most  States  the 
term  is  either  two  or  four  years;  in  some  Kew  England 
States  it  is  one  year. 


46  ^tate  Governments. 

4.  Qnalifications. — The  qualifications  for  the  office  of 
governor  are  also  different  in  the  different  States.  To  be 
eligible,  a  person  must  have  been  for  a  certain  number  of 
years  a  citizen  of  the  United  States,  and  for  a  term  of 
years  preceding  his  election  a  resident  of  the  State.  He 
must  also  be  above  a  certain  age,  which  in  a  majority  of  the 
States  is  thirty  years;  and  in  some  States  he  must  own  a 
certain  amount  of  property. 

6.  Executive  Powers. — The  governor's  executive  powers 
and  duties  are  numerous  and  important.  He  represents 
the  State  in  its  dealings  with  other  States.  He  is  com- 
mander-in-chief of  the  military  force  of  the  State,  and  can 
call  it  out  in  times  of  insurrection.  He  is  to  take  care 
that  the  laws  are  faithfully  executed,  and  may  require  in- 
formation at  any  time  from  the  different  executive  officers 
concerning  the  condition  of  affairs  in  their  respective  de- 
partments. He  communicates  by  message  to  the  legisla- 
ture, at  every  session,  information  of  the  condition  of  the 
State,  and  recommends  such  measures  as  he  judges  neces- 
sary and  expedient.  He  may  convene  the  legislature  on 
extraordinary  occasions;  that  is,  when  some  important  mat- 
ter arises  requiring  immediate  attention. 

6.  Legislative  Powers. — In  most  States  the  governor 
has  the  veto  power.     (See  page  43,  §  11.) 

7.  Judicial  Powers. — A  governor  has  power  to  grant 
reprieves  and  pardons,  except  in  cases  of  impeachment, 
and,  in  some  States,  of  treason.  To  reprieve  is  to  postpone 
or  delay  for  a  time  the  execution  of  the  sentence  of  death 
upon  a  criminal.  To  pardon  is  to  annul  the  sentence  by 
forgiving  the  offence  and  releasing  the  offender.  A  gover- 
nor may  also  commute  a  sentence,  which  is  to  exchange  one 
penalty  or  punishment  for  another  of  less  severity;  as, 
when  a  person  sentenced  to  suffer  death  is  ordered  to  be 
imprisoned. 


Executive  Department.  47 

ammm^-  I    111     IP ■!    ■! 

8.  Appointments. — The  governor  also  appoints  some 
executive  or  judicial  officers.  The  power  of  appointment 
varies  greatly  in  the  different  States:  in  some  he  appoints 
all  the  higher  executive  and  judicial  officers,  such  as  the 
secretary  of  state,  the  attorney-general,  or  the  judges  of 
the  courts;  in  others,  those  are  all  elected,  and  he  only 
appoints  some  lower  officers,  such  as  notaries.  He  almost 
never  has  the  power  to  appoint  legislative  officers.  He  also 
fills  vacancies  in  executive  and  judicial  offices,  until  the  next 
election,  when  they  occur  through  death  or  resignation. 
He  has  in  some  cases  the  power  of  removal  for  misconduct. 

These  are  only  the  principal  powers  and  duties  devolved 
on  the  governor.     He  has  many  others. 

9.  Councils. — In  a  few  States  an  executive  council  is 
elected  by  the  people,  whose  duty  it  is  to  advise  the  gov- 
ernor. In  many  cases,  as,  for  instance,  appointments,  he 
must  obtain  their  consent. 

10.  Lieutenant-Governor. — In  many  of  the  Ctates  this 
office  does  not  exist.*  He  has  few  duties.  In  most  States 
where  the  office  exists,  he  presides  in  the  senate,  in  which 
he  has  only  a  casting  vote.  The  chief  object  of  this  office 
seems  to  be  to  provide  a  suitable  person  to  fill  the  vacancy 
in  the  office  of  governor  in  case  the  latter  should  die,  re- 
sign, be  removed,  or  otherwise  become  incompetent. 

11.  Assistant  Officers. — Among  the  executive  officers 
who  assist  in  the  administration  of  the  government,  there 
are  in  every  State  some  or  all  of  the  following:  a  secretary 
of  state,  a  comptroller  or  auditor,  a  treasurer,  and  an  at- 
torney-general. In  some  States  they  are  appointed  by 
the  governor,  in  others  by  the  legislature,  and  in  others 
they  are  elected  by  the  people. 

12.  The  Secretary  of  State  has  charge  of  the  State 
papers  and  records.     He  keeps  a  record  of  the  official  acts" 

*Viz:.  Alabama,  Arkansas,  Delaware,  Georgia,  Maine,  Maryland, 
New  Hampshire,  New  Jersey,  Oregon,  Tennessee,  and  West  Virginia, 


Btate  Gomrnments. 


and  proceedings  of  the  legislature  and  of  the  executive 
departments,  and  has  the  care  of  the  books,  records,  deeds 
of  the  State,  parchments,  the  laws  enacted  by  the  legisla- 
ture, and  all  other  papers  and  documents  required  by  law 
to  be  kept  in  his  office. 

13.  The  State  Comptroller,  in  some  States  called  audi- 
tor, manages  the  financial  concerns  of  the  State;  that  is, 
the  business  relating  to  the  money,  debts,  land,  and  other 
property  of  the  State.  He  examines  and  adjusts  accounts 
and  claims  against  the  State,  and  superintends  the  collec- 
tion of  moneys  due  the  State.  When  money  is  to  be  paid 
out  he  draws  a  warrant  on  the  state  treasurer. 

14.  The  State  Treasurer  has  charge  of  all  the  moneys  of 
the  State,  and  pays  out  the  same  as  directed  by  law,  and 
keeps  an  accurate  account  of  such  moneys. 

15.  Official  Bonds. — Auditors,  treasurers,  and  other  offi- 
cers intrusted  with  the  care  and  management  of  money  or 
otl*er  property  are  generally  required,  before  they  enter  on 
the  duties  of  their  offices,  to  give  bonds,  in  sums  of  certain 
amount  specified  in  the  law,  with  sufficient  sureties,  for  the 
faithful  performance  of  their  duties.  The  sureties  are  per- 
sons who  sign  the  bond  with  the  officer,  and  bind  them- 
selves to  pay  the  State  all  damages  arising  from  neglect  of 
duty  on  the  part  of  the  officer,  not  exceeding  the  sum 
mentioned  in  the  bond. 

16.  The  Attorney-General  is  a  lawyer  who  acts  for  the 
State  in  lawsuits  in  which  the  State  is  a  party.  He  prose- 
cutes persons  indebted  to  the  State,  and  causes  to  be 
brought  to  trial  persons  charged  with  certain  crimes.  He 
also  gives  his  opinion  on  questions  of  law  submitted  to 
him  by  the  governor,  the  legislature,  and  the  executive 
officers. 

17.  Other  Officers. — There  are  also  in  some  States  the 
following   officers:   a  surveyor-general^  who    superintends 


Executive  Department.  49 

the  surveying  of  the  lands  belonging  to  the  State,  and  who 
keeps  in  his  office  maps  describing  the  bounds  of  the  coun- 
ties and  townships;  a  superintendent  of  schools  or  superin- 
tendent of  public  instruction,  who  attends  to  many  matters 
connected  with  the  public  schools  of  the  State;  a  state 
printer,  who  prints  the  laws  and  all  state  papers;  a  state 
librarian,  who  has  charge  of  the  state  library;  and  others. 


CHAPTER   XII. 

COUNTY     OFFICERS. 

1.  Reasons  for  Division. — A  State  is  divided  into  coun- 
ties,* and  each  county  is  divided  into  towns,  f  Thus  every 
part  of  the  State  is  within  some  town  and  some  county. 
There  are  several  reasons  for  this  division:  for  convenience 
in  the  legislative,  executive,  and  judicial  departments. 
Some  laws  may  be  necessary  in  some  parts  of  the  State 
that  are  not  needed  in  others,  and  which  the  people  of 
those  parts  can  better  make  for  themselves,  and  the  boun- 

*  Counties  in  tlie  same  State  are  about  the  same  size,  and  have 
about  the  same  population;  but  the  counties  of  one  State  as  com- 
pared with  those  of  anotlier  vary  very  greatly  as  to  number,  size, 
and  population.  In  1870,  Massacliusetts  had  14  counties,  Texas  162, 
and  Oregon  25;  in  Massacliusetts  there  were  about  500  square  miles 
in  a  county,  in  Texas  1500,  and  in  Oregon  4000;  in  Massachusetts 
the  population  in  a  county  was  about  100,000,  in  Texas  5000,  and  in 
Oregon  4000.     Counties  exist  in  every  State  except  Louisiana. 

f  Towns  or  townships  also  vary  in  size,  but  perhaps  a  fair  aver- 
age would  be  from  five  to  ten  miles  square.  Towns  do  not  exist, 
generally,  in  the  Southern  States  or  the  extreme  Western  States. 
There  the  county  is  not  divided  except  for  special  purposes. 


50  Btate  Governments. 

daries  must  be  clearly  fixed  that  it  may  be  known  who 
comes  under  the  regulations  or  Avho  can  make  them.  So, 
too,  there  are  many  executive  officers,  such  as  sheriffs  and 
collectors  of  taxes,  but  each  must  have  his  jurisdiction  con- 
fined to  particular  limits  or  there  would  be  great  con- 
fusion. There  are  many  lower  courts,  too^  and  the  juris- 
diction of  each  must  be  clearly  defined. 

2.  Origin  of  County. — Counties  in  England  were  for- 
merly districts  governed  by  counts  or  earls,  from  which 
comes  the  name  of  county.  A  county  was  also  called 
shire,  and  an  officer  was  appointed  by  the  count  or  earl  to 
perform  certain  acts  in  the  principal  town  in  the  county, 
which  was  called  sliire  town,  and  the  officer  was  called 
shire-reeve,  or  sheriff.  He  was  a  more  important  officer 
than  the  sheriff  of  a  county  in  this  country  now  is.  The 
court-house  and  other  county  buildings  are  situated  at  the 
principal  place  in  the  county,  and  it  is  called  the  county- 
seat,  or  capital. 

3.  Political  Importance. — In  the  Southern  and  extreme 
Western  States  the  county  is  the  most  important  political 
division,  and  exercises  most  of  the  local  governmental 
powers,  such  as  many  important  powers  with  regard  to  the 
establishment  of  common  schools,  regulation  of  roads,  lay- 
ing and  collection  of  taxes,  care  of  the  poor,  etc.  In  New 
England  the  town  exercises  most  of  these  powers,  and  the 
county  has  very  little  importance.  In  the  remainder — 
that  is,  in  the  Middle  and  Western  States  (except  those  far 
west) — these  powers  are  divided  between  the  county  and 
town. 

4.  Corporations. — Counties,  towns,  cities,  and  villages 
are  municipal  corporations.  Let  us  see  what  a  corporation 
is.  Persons,  in  a  legal  sense,  are  divided  into  two  classes, 
natural  persons  and  corporations.  Natural  Persons  are 
human  beings,  as  God  made  them;  Corporations  are  arti- 


Executive  Department.  ^  51 

ficial  persons,  or  bodies,  created  by  law.  In  other  words, 
a  corporation  (also  called  a  body  politic^  or  hody  corporate) 
is  an  association  of  persons  authorized  by  law  to  transact 
business  under  a  common  name  and  as  a  single  person. 
The  laws  of  the  State  give  such  authority  to  the  inhabitants 
of  counties  and  towns.  The  people  of  a  town  or  county 
have  power,  to  some  extent,  to  buy,  hold,  and  sell  prop- 
erty, and  sue  and  be  sued,  as  single  individuals.  There- 
fore they  are  corporations.  So,  also,  is  the  State  itself. 
But  there  are  two  kinds  of  corporations:  public,  or  muni- 
cipal,  and  private.  Public,  or  municipal  corporations  are 
those  organized  for  purj^oses  of  government,  such  as  coun- 
ties, towns,  cities,  and  villages;  private  corporations  are 
all  others,  such  as  banks,  railroad  companies,  and  churches. 

5.  County  Commissioners. — We  have  seen  that  a  county 
is  a  corporation,  and  that  corporations  have  power  to  act 
as  single  persons.  But  a  corporation  must  act  by  means 
of  natural  persons,  i.e.  by  its  agents.  The  chief  agent  of 
a  county — that  is,  the  body  which  exercises  the  most  im- 
portant corporate  powers — is  a  board  of  county  commission- 
ers (usually  three).  In  a  few  States  these  powers  are 
exercised  by  and  in  the  name  of  the  board  of  supervisors, 
which  is  composed  of  the  supervisors  of  the  several  towns 
in  the  county,  of  whom  there  is  one  supervisor  in  each 
town.  These  boards  have  charge  of  the  county  property, 
and  may  make  orders  and  contracts  in  relation  to  the 
building  or  repairing  of  the  court-house,  jail,  and  other 
county  buildings.  In  those  States  in  which  the  county 
exercises  more  political  power  than  the  town,  these  boards 
have  many  powers  with  regard  to  schools,  roads,  taxes,  etc. 
The  following  are  the  more  important  county  officers  which 
exist  in  every  State: 

6.  County  Treasurer. — There  is  in  each  county  a  treas- 
urer to  receive  and  pay  out  the  moneys  of  the  county,  as 


52  State  Governments. 

required.  There  is  also,  in  some  States,  a  county  auditor 
to  examine  and  adjust  the  accounts  and  debts  of  the 
county.  The  business  of  county  treasurers  and  auditors  in 
their  respective  counties  is  of  the  same  nature  as  that  of 
state  auditors  and  treasurers,  and  they  are  required  to  give 
bonds  in  the  same  way.  In  States  in  which  there  is  no 
county  auditor,  the  duties  of  auditor  are  performed  by  the 
treasurer. 

7.  Recorder. — There  is  also  in  each  county  a  register  or 
recorder,  who  records  in  books  provided  for  that  purpose 
all  deeds,  mortgages,  and  ©ther  instruments  of  writing  re- 
quired by  law  to  be  recorded.  In  New  York  and  in  some 
other  States  the  business  of  a  register  or  recorder  is  done 
by  a  county  clerk,  who  is  also  clerk  of  the  several  courts 
held  in  the  county.  In  some  States  deeds,  mortgages,  and 
other  written  instruments  are  recorded  by  the  town  clerks 
of  the  several  towns. 

8.  Sheriff. — Another  county  officer  is  a  sheriff,  whose 
duty  it  is  to  execute  all  wairants,  writs,  and  other  process 
directed  to  him  by  the  courts;  to  apprehend  persons 
charged  with  crime;  and  to  take  charge  of  the  jail  and  of 
the  prisoners  therein.  It  is  his  duty,  also,  to  preserve  the 
public  peace;  and  he  may  cause  all  persons  who  break  tlie 
public  peace  within  his  knowledge  or  view  to  give  bonds, 
with  sureties,  for  keeping  the  peace  and  for  appearing  at 
the  next  court  to  be  held  in  the  county,  and  to  commit 
them  to  jail  if  they  refuse  to  give  such  bonds.  A  sheriff  is 
assisted  by  deputies. 

9.  Coroner. — There  are  in  each  county  one  or  more 
coroners,  whose  principal  duty  is  to  inquire  into  the  cause 
of  the  death  of  persons  who  have  died  by  violence,  or  sud- 
denly, and  by  means  unknown.  Notice  of  the  death  of  a 
person  having  so  died  is  given  to  a  coroner,  who  institutes 
an  examination.     A  jury  is  summoned  to  attend  the  ex- 


Executive  Department,  53 

amination;  witnesses  are  examined;  and  the  jury  give  their 
opinion  in  writing  as  to  the  cause  and  manner  of  the  death. 
Such  inquiry  is  called  a  coroner'' s  inqitest. 

10.  The  District  Attorney  is  a  lawyer  who  attends  all 
courts  in  the  county  in  which  persons  are  tried  for  crimes, 
and  conducts  the  prosecution.  As  all  crimes  and  breaches 
of  the  peace  are  considered  as  committed  against  the  State, 
and  prosecuted  in  its  name,  this  attorney  is  sometimes 
called  staters  attorney,  or  prosecuting  attorney. 

11.  Other  Officers. — There  are  often  other  officers  in 
each  county;  such  as,  assessors,  who  assess  the  value  of  each 
one's  property  so  that  it  may  be  known  what  tax  he  shall 
pay;  collectors  of  taxes;  a  county  surveyor;  a  superinten- 
de7it  of  schools. 

12.  Elected. — County  officers  are  generally  elected  by 
the  people  of  the  county,  for  terms  of  from  one  to  four 
years.  Some  of  them  are,  in  some  of  the  States,  appointed 
by  some  authority  prescribed  by  the  constitution  or  laws 
of  the  State. 

13.  Whom  They  Represent. — While  the  differt5nt  county 
officers  are  alike  in  this  respect,  that  their  jurisdiction  ex- 
tends only  to  their  particular  county,  and  also  in  this  fact, 
that  in  their  official  acts  they  act  as  representatives  or 
agents  of  the  people;  they  differ  from  each  other  in  this, 
that  while  some  represent  the  people  of  the  whole  State 
(and  in  that  sense  may  be  called  state  officers),  others  repre- 
sent only  the  people  of  their  own  county.  Thus,  when  a 
sheriff  arrests  a  man  for  crime,  it  is  the  State  which  arrests 
him  by  the  hand  of  its  agent  in  that  county;  when  the 
district  attorney  prosecutes  him,  it  is  the  State  which  is 
trying  him  for  the  crime  against  itself.  (See  page  80,  foot- 
note. )  On  the  other  hand  the  county  commissioners  com- 
monly act  only  as  agents  of  their  county.  Some  officers 
may  represent  the  State  in  some  of  their  duties,  and  "he 
county  in  others. 


54  State  Governments, 


CHAPTER  XIIL 

lOWN    OFFICEKS. 

1.  Towns. — In  all  the  States  except  those  far  west 
and  most  of  the  Southern  States,  each  county  is  sub- 
divided. These  subdivisions  are  called  towns  at  the  East, 
and  townships  at  the  West  and  South.  At  the  West  and 
South  a  village  or  city  is  often  called  a  town.  But  in  this 
book  we  shall  use  the  word  town  as  meaning  an  organized 
subdivision  of  a  county.  In  those  States  where  towns  do 
not  exist,  the  county  exercises  all  the  local  governmental 
powers  and  has  all  the  necessary  officers.  It  must  be  re- 
membered, then,  that  this  chapter  does  not  apply  to  all 
the  States. 

2.  Chief  Officer. — Since  a  town  is  a  corporation,  it  must, 
like  a  county,  have  some  one  to  represent  it  and  act  for  it. 
The  principal  officer,  or  board,  whose  duty  this  is  has  dif- 
ferent names  in  different  States.  In  the  New  England  towns 
there  are  what  are  called  selectmen,  three  or  more  in  each 
town.  In  a  few  States  there  are  trustees  of  townships.  In 
a  few  other  States  there  is  in  each  town  one  such  officer, 
called  supervisor.  The  powers  and  duties  of  these  officers 
are  the  most  numerous  and  important  in  New  England, 
where  the  town  is  the  most  important  division  of  the 
State.  They  have  duties  with  regard  to  taking  charge  of 
the  town  property,  laying  out  and  repairing  roads,  collect- 
ing taxes,  providing  for  the  poor,  etc.  In  those  States 
where  the  county  is  the  more  important  division,  the  town 
officers  have  fewer  of  these  duties,  and  the  county  officers 
have  more. 


Executive  Department.  65 

3.  Treasurer. — There  is  often  a  town  treasurer,  with 
duties,  in  his  own  town,  analogous  to  those  of  a  county 
treasurer. 

4.  Town  Clerk. — A  totv7i  clei^h  in  each  town  keeps  the 
records,  books,  and  papers  of  the  town.  He  records  in  a 
book  the  proceedings  of  town  meetings,  the  names  of  the 
persons  elected,  and  such  other  papers  as  are  required  by 
law  to  be  recorded. 

6.  Constables. — There  are  several  constables  in  each 
town.  Their  principal  duties  are  to  serve  all  writs  and 
processes  issued  by  Justices  of  the  peace.  The  business  of 
a  constable  in  executing  the  orders  of  a  justice  of  the 
peace  is  similar  to  that  of  a  sheriff  in  relation  to  the  county 
courts. 

6.  Highways.  — For  the  repairing  of  highways  and 
hridges,  a  town  is  divided  by  the  proper  officers  into  as 
many  road  districts  as  maybe  judged  convenient;  and  a  per- 
son residing  in  each  district  is  chosen,  called  overseer  or 
supervisor,  or  surveyor  of  highways,  whose  duty  it  is  to 
see  that  the  roads  and  bridges  are  repaired  and  kept  in 
order  in  his  district.  In  some  cases  a  tax  is  laid  for  the 
purpose,  and  ordinary  laborers  do  the  work.  In  others, 
each  one  taxed  may  work  on  the  road  himself  a  certain 
number  of  days,  or  he  may  pay  the  tax,  according  as  he 
wishes. 

7.  Overseers  of  the  Poor  provide  for  the  support  of^ 
paupers  belonging  to  the  town,  who  have  no  near  rela- 
tives able  to  support  them.  In  some  States  there  is  in 
each  county  a  poor-house,  to  which  the  paupers  of  the 
several  towns  are  sent  to  be  provided  for;  the  expense  to 
be  charged  to  the  towns  to  which  such  poor  persons  be- 
longed. 

8.  Other  Officers. — There  are  often  in  every  town  other 
inferior  officers :  assessors  and  collectors  of  taxes  (see  Chap. 


56  Biate  Governments. 

XV.);  certain  school-officers  ;  fence-vleimrs,  who  settle  dis- 
putes as  to  division  fences;  pound-heepers,  who  take  charge 
of  stray  animals;  sealers,  who  keep  correct  copies  of  the 
standard  of  weights  and  measures;  and  others. 

9.  Elected. — Most  town  officers  are  elected  by  the  elect- 
ors of  their  respective  towns  at  the  annual  town  meetings, 
for  terms  of  one  year. 

10.  Town  Meetings. — These  are  meetings  of  the  electors 
held  once  a  year  in  every  town  for  the  election  of  town 
officers  and  for  certain  other  business.  They  exist  only  in 
New  England  and  a  few  other  States  which  have  been 
under  the  influence  of  New  England.  At  them  the  people 
not  only  elect  officers,  but  take  some  share  in  the  govern- 
ment. For  instance,  they  have  power  to  vote  what  money 
shall  be  raised  for  school  purposes,  for  highways,  and  other 
purposes;  what  salaries  shall  be  paid  different  officers; 
what  proceedings  shall  be  taken  at  law;  and  other  powers. 
This,  as  far  as  it  goes,  is  pure  democracy.  With  a  county 
it  is  different.  The  people  of  a  county  never  meet  together 
except  to  elect  officers,  and  take  no  part,  directly,  in  the 
direction  of  affairs. 


CHAPTEK  XIV. 

CITIES    AND   VILLAGES. 

1.  Reasons  for  Incorporation. — A  city,  or  a  village,*  is  a 
particular  portion  of  a  town  which  has  become  so  thickly 
populated  that  a  different  kind  of  government  is  needed 

*  The  word  milage  very  often  means  only  a  collection  of  houses, 
or  of  people  living  near  one  another,  but  in  this  chapter  we  shall  use 
the  word  for  an  incorporated  village.  In  Connecticut  and  Pennsyl- 
vania an  incorporated  village  is  called  a  horovgh. 


Executice  Department  57 


from  that  of  the  rest  of  the  town.  For  instance,  where 
there  are  many  people  who  use  the  streets,  sidewalks  will  be 
necessary,  and  where  the  houses  are  near  to  each  other,  as  in 
the  ordinary  village,  fire-engines  and  fire-companies  will  be 
necessary  to  prevent  the  whoFe  place  from  being  destroyed; 
and  if  the  population  is  still  more  dense,  as  in  a  city,  many 
other  regulations  are  necessary — such  as,  with  regard  to 
police,  water  supply,  cleaning  the  streets,  sewers,  etc.  But 
towns  do  not  have  the  power  to  regulate  these  things.  It 
is  thought  best  that  the  people  living  in  those  thickly  popu- 
lated portions  should  do  it  themselves.  The  legislature  of 
the  State  gives  them  these  powers  by  incorporating  them 
into  a  village  or  city. 

2.  Charter. — Whenever,  therefore,  the  inhabitants  of 
any  portion  of  a  town  become  so  numerous  as  to  require  3 
government  with  more  powers  than  the  rest  of  the  towUj 
they  petition  the  legislature  for  a  law  incorporating  them 
into  a  village,  or,  if  they  are  very  numerous,  a  city.  Th& 
law  or  act  of  incorporation  is  usually  called  a  charter. 
The  word  charter  is  from  the  Latin  charta,  which  means 
paper.  The  instruments  of  writing  by  which  kings  or 
other  sovereign  powers  granted  rights  and  privileges  to  in- 
dividuals or  corporations  were  written  on  paper  or  parch- 
ment, and  called  charters.  In  this  country  it  is  com- 
monly used  to  designate  an  act  of  the  legislature  conferring 
privileges  and  powers  upon  cities,  villages,  and  other  cor- 
porations. 

3.  Its  Contents. — The  charter  describes  the  boundaries 
of  the  city  and  village,  prescribes  what  officers  it  shall  have, 
and  what  shall  be  their  powers  and  duties. 

4.  City  Officers. — The  chief  executive  officer  of  a  city  is 
a  mayor.  A  city  is  divided  into  wards  of  conveniisnt  size, 
in  each  of  which  are  chosen  one  or  more  aldermen  (usually 
two)  and  such  other  officers  as  are  named  m  tne  cnarter- 


58  State  Governments, 

The  mayor  and  aldermen  constitute  the  city  council, 
which  is  a  kind  of  legislature,  having  the  power  to  pass 
such  laws  (commonly  called  ordinances)  as  the  government 
of  the  city  requires.*  There  are  also  elected  in  the  several 
wards  assessors,  constables,  collectors,  and  other  necessary 
officers,  whose  duties  in  their  respective  wards  are  similar 
to  those  of  like-named^  officers  in  country  towns,  or  town- 
ships. 

5.  Village  Officers. — The  chief  executive  officer  of  a 
village  is,  in  some  States,  called  president.  The  village 
is  not  divided  into  wards,  the  number  of  its  inhabitants 
being  too  small  to  require  such  division.  Instead  of  a 
board  of  aldermen  there  is  a  board  of  trustees  or  directors, 
who  exercise  similar  powers.  The  president  of  a  village  is 
generally  chosen  by  the  trustees  from  their  own  number. 
In  some  States  incorporated  villages  are  called  towns,  and 
their  chief  executive  officer  is  called  mayor, 

6.  General  Law. — The  constitutions  of  some  States  re- 
quire the  legislature  to  pass  a  general  law  prescribing  the 
manner  in  which  the  people  in  any  place  may  form  them- 
selves into  an  incorporated  village  without  a  special  law  or 
charter. 

7.  Subject  to  Laws  of  State. — The  inhabitants  of  cities 
and  villages,  however,  are  not  governed  alone  by  laws 
made  by  the  common  council  and  the  trustees.  Those 
laws  and  regulations  relate  only  to  local  matters.  Most 
of  the  laws  enacted  by  the  legislature  are  of  general  appli- 
cation, and  have  the  same  effect  in  cities  and  villages  as 
elsewhere.  Thus  the  laws  of  the  State  require  that  taxes 
shall  be  assessed  and  levied  upon  the  property  of  the  citi- 
zens of  the  State  to  defray  the  public  expenses,  and  the 

*  In  some  cases  there  are  two  boards,  in  analogy  with  the  two 
legislative  houses  of  the  State. 


Executive  Department. 


59 


people  of  the  cities  are  required  to  pay  their  just  propor- 
tion of  the  same;  but  the  city  authorities  lay  and  collect 
additional  taxes  for  city  purposes. 

8.  Corporations. — We  have  seen  that  the  State,  counties, 
towns,  cities,  and  villages  are  all  corporations,  and  that 
there  are  also  other  corporations,  such  as  banks,  railroad 
companies,  etc.  !N'ow  all  corporations  are  alike  in  some 
particulars.  They  all  continue  after  the  persons  first 
composing    them  are  dead.      They    all  have    power    to 

!PX4GKAM     SHOWING    THE    RELATION?"    BETWEEI^    CoUNTY, 

Towjf,  City,  akd  Yillag-e. 


The  whole  diagram  represents  a  county. 

The  numbers  represent  the  towns  into  which  it  is  divided. 

A  represents  a  city. 

h,  c,  d,  and  e  represent  villages. 


buy  and  sell  property,  and  to  borrow  money  to  a  certain 
extent.  But  they  also  differ  in  some  respects.  A  State 
differs  from  other  municipal  corporations  in  the  manner  of 


60  iSiazt  ijromrnments. 

formation.  A  State  is  formed  by  the  people  when  they 
adopt  the  constitution;  the  other  municipal  corporations 
— i.e.  cities,  towns,  etc. — are  formed  by  the  legislature. 
Again,  all  municipal  corporations  differ  from  other  cor- 
porations in  two  particulars:  their  purpose  and  their  mem- 
bership. Municipal  corporations  are  organized  only  for 
purposes  of  government;  the  others  are  organized  for  other^ 
purposes,  such  as  business  (banks,  insurance  companies, 
etc.),  religion  (churches),  or  charity  (hospitals,  etc.).  Of 
a  municipal  corporation  every  one  is  a  member  who  lives 
within  its  limits,  whether  he  wishes  to  be  or  not;  but  in 
other  corporations  one  only  becomes  a  member  by  his  own 
choice. 


CHAPTER  XV. 

TAXES. 

1.  Reasons  for  Them. — Every  government  must  have 
the  power  of  providing  means  for  its  support.  The  dif- 
ferent state,  county,  and  town  officers  must  be  paid 
salaries;  money  is  needed  for  public  buildings,  such  as 
state-houses,  court-houses,  jails,  etc.;  and  there  are  other 
necessities.  The  money  which  is  needed  to  pay  the  ex- 
penses of  administering  the  government,  if  the  State, 
county,  or  town  has  no  permanent  source  of  revenue  or 
income,  must  be  raised  by  taxation.  A  tax  is  a  sum  of 
money  assessed  upon  the  person  of  a  citizen  for  the  use  of 
the  government.  When  each  one  is  required  to  pay  a  cer- 
tain sum,  the  same  for  all,  it  is  called  a  poll-tax,  or  capita- 
tion tax,  being  a  certain  sum  on  every  poll,  or  head.  But, 
as  persons  ougbt  to  contribute  to  the  public  expenses  ac- 


Executive  Department  ^A 

cording  to  their  ability,  taxes  are  more  just  when  laid  upon 
the  citizens  in  proportion  to  the  property  each  one  owns. 
In  ordinary  speech  we  say  that  the  property  itself  is  taxed. 

2.  Land  Tax  most  Common. — Both  real  and  personal 
property  *  are  subject  to  taxation  ;  but  in  the  United 
States  most  of  the  taxes  are  laid  upon  the  laud,  for  the 
reason  that  it  is  always  difficult  for  the  assessors  to  ascer- 
tain all  the  personal  property  each  one  owns.  Poll-taxes 
are  laid  in  many  States,  but  they  are  very  small. 

3.  Assessment. — This  means  valuation.  As  every  person 
is  to  be  tailed  in  proportion  to  the  vakie  of  his  property,  it  is 
necessary,  first,  to  make  a  correct  valuation  of  all  his  tax- 
able property.  For  this  purpose,  the  assessor  or  assessors 
pass  through  the  town,  and  make  a  list  of  the  names  of  all 
the  taxable  inhabitants,  and  the  estimated  value  of  the 
property^  real  and  personal,  of  each.  If  any  one  thinks  his 
property  is  valued  at  too  high  a  rate,  he  has  an  oppor- 
tunity to  appear  before  the  assessors  and  ask  to  have  the 
assessment  reduced.  The  town  assessors  then  make  returns 
to  the  proper  state  and  county  officers  of  all  the  property, 
and  its  valuation,  in  the  town. 

4.  Information. — In  some  States  persons  liable  to  taxa- 
tion are  themselves  required  to  furnish  lists  of  all  their 
taxable  property,  printed  blank  lists  having  been  previ- 
ously distributed  among  them  for  this  purpose.  To  secure 
an  accurate  valuation,  the  assessors  (called  also  listers)  may 
require  persons  to  make  oath  that  they  have  made  a  true 
statement  of  their  property  and  its  value. 

5.  Exemptions. — There  are  certain  kinds  of  property 
which  are  exempt  from  taxation;    such  as  the  corporate 

*Real  estate,  or  real  property,  is  land  with  the  buildings  and  other 
articles  erected  or  growing  thereon.  Personal  estate,  or  personal 
property,  is  every  other  kind  of  property;  such  as,  goods,  stocks  and 
bonds,  money,  and  debts  due  from  debtors. 


62  Btate  Governments, 

property  of  the  State,  of  counties,  and  of  towns,  includ- 
ing the  buildings  in  which  the  public  business  is  done, 
the  prisons,  jails,  asylums,  etc.,  and  the  lands  attached  to 
them;  school-houses  and  churches,  with  the  lands  attached; 
burying-gi'ounds,  and  the  property  of  literary  and  charita- 
ble institutions.  But  the  property  of  business  corpora- 
tions, as  railroad,  banking,  insurance,  manufacturing,  and 
other  stock  companies,  like  that  of  indiyiduals,  is  liable  to 
taxation. 

6.  Three  Amounts. — Before  a  tax-list  can  be  made  out, 
showing  what  each  one's  tax  is  to  be,  it  must  be  known 
what  amount  is  to  be  collected  in  each  town.  This 
amount  is  made  up  of  three  parts:  first,  the  fum  wanted 
to  pay  the  expenses  of  the  town  for  the  current  year; 
second,  the  town's  share  of  the  county  expenses;  and  third, 
its  proportionate  share  of  the  expenses  of  the  state  goy- 
emment,  or  of  what  is  to  be  raised  for  state  purposes.  In 
this  country  the  amount  that  each  one  pays  for  state  pur- 
poses is  usually  yery  much  less  than  what  he  pays  for 
ccunty  and  town  purposes.  The  ratio  of  the  county  to  the 
town  tax  yaries  in  proportion  to  the  political  importance  of 
the  county  and  town.     ..n  many  States  there  is  no  town  tax- 

7.  Apportionment.  —The  apportionment  of  the  amount 
of  the  state  and  county  expenses  among  the  seyeral  towns 
is  made  according  to  the  amount  of  property  in  each  as 
yalued  by  the  assessors.  The  state  auditor  or  comptroller 
haying  receiyed  from  the  several  counties  returns  of  the 
yalue  of  the  property  in  each  county,  is  enabled  to  deter- 
mine its  quota  of  the  amount  to  be  raised  for  state  pur- 
poses. He  sends  to  the  proper  officers  in  each  county 
(county  commissioners,  or  board  of  supervisors)  a  state- 
ment showing  what  part  of  the  state  tax  the  county  is  to 
pay.  The  county  officers  add  to  each  county's  share  of  the 
state  expenses  the  sum  to  be  raised  in  the  county  for 


Executive  Department.  63 

county  purposes,  and  apportion  the  whole  amount  among 
the  towns  in  proportion  to  the  value  of  the  property  in 
each.  Then  the  town  officers,  in  turn,  add  to  each  town's 
share  of  the  amount  of  the  state  and  county  expenses  the 
amount  to  be  raised  for  town  purposes,  and  this  gives  the 
whole  sum  to  be  collected  in  the  town.  This  sum  is 
divided  up  among  the  inhabitants  of  the  town  in  propor- 
tion to  their  property  as  valued  by  the  assessors,  and  a  tax- 
list,  showing  what  each  one  is  to  pay,  is  given  to  the  collec- 
tor. In  cities  and  villages  each  one's  tax  includes  also  his 
proportionate  share  of  the  amount  to  be  raised  for  city,  or 
village,  purposes.  Taxes  in  cities  are  usually  very  much 
higher  than  anywhere  else. 

8.  Collection. — When  the  collector  has  received  the 
taxes  he  pays  them  over  to  the  town  treasurer.  The  latter 
retains  the  portion  collected  for  town  purposes,  and  remits 
the  remainder  to  his  county  treasurer.  The  county  treas- 
urer retains  the  portion  collected  for  county  purposes  and 
remits  the  remainder  to  the  state  treasurer.  The  system 
of  assessment  and  collection  of  taxes  varies  in  the  differ- 
ent States.  The  system  described  in  this  chapter  applies 
chiefly  to  the  Northern  States. 

9.  Tax  Sales. — Where  a  person  neglects  to  pay  his  tax, 
means  are  provided  by  law  to  enforce  payment.  If  he  is 
taxed  for  personal  property,  sometimes  the  collector  may 
seize  his  goods  and  sell  them,  and  sometimes  suit  must  be 
brought  in  the  usual  way.  But  if  he  is  taxed  for  land,  a 
different  course  is  pursued.  In  a  certain  sense,  the  land 
itself  is  taxed.  If  the  tax  is  not  paid  within  a  certain, 
time,  the  proper  authorities  sell  or  lease  the  land  for  a  cer- 
tain period  to  any  one  who  will  pay  the  tax.  The  owner 
then  has  the  right  to  redeem  within  a  certain  time,  gener- 
ally two  or  three  years,  by  paying  to  the  purchaser  what  he 
has  paid  for  taxes,  with  interest.     The  purchaser  does  not 


64  State  Governments. 


have  the  right  to  take  possession  of  the  land  until  the  time 
to  redeem  has  expired. 

10.  Assessments. — Assessment  has  been  used  in  the  sense 
of  valuation.  But  it  is  also  often  used  to  mean  a  tax  laid 
in  a  city  to  pay  for  some  public  improvement;  such  as,  the 
building  of  a  sewer,  the  paving  of  a  street,  the  laying  out 
of  a  park,  etc.  In  such  cases  the  benefit  of  the  improve- 
ment is  felt,  sometimes  wholly,  generally  chiefly,  by  those 
who  live  near,  and  therefore  they  are  required  to  pay  for  it. 
For  instance,  when  a  sewer  is  built  in  a  side  street,  only 
the  property  on  each  side  of  that  street  is  assessed  for  it. 

11.  Indirect  Taxes. — The  taxes  that  have  been  described 
are  called  direct  taxes  But  there  are  also  indirect  taxes, 
so  called  because,  when  finally  paid,  they  are  not  paid 
directly  to  the  government  as  a  tax,  but  as  a  part  of  the 
price  of  something.  They  include  duties  which  are  paid 
on  goods  exported  from  a  country  or  imported  into  it,  on 
goods  manufactured,  licenses  for  carrying  on  certain  trades, 
or  for  doing  certain  things,  etc.  For  instance,  if  a  tax  is 
laid  on  the  manufacture  of  liquors,  the  manufacturer  adds 
enough  to  the  price  of  the  liquor  to  cover  the  tax,  and  so 
the  consumer,  when  he  buys,  indirectly  pays  the  tax.  Only 
a  small  portion  of  the  revenue  of  a  State  is  derived  from 
indirect  taxation.  The  United  States  Constitution  forbid? 
any  State  to  lay  import  oi'  export  duties. 


Executive  Department,  65 


CHAPTER  XVI. 

EDUCATION. 

1.  A  Proper  Object  of  Government. — The  proper  object 
of  government  is  to  promote  the  welfare  and  happiness  of 
its  citizens.  For  this  purpose  it  must  protect  the  people 
in  the  enjoyment  of  life  and  the  fruits  of  their  labor.  But 
it  should  go  further,  and  make  express  provision  for  im- 
proving the  condition  of  the  people,  especially  the  less 
fortunate  portions  of  them.  The  prosperity  of  a  State  or 
nation  depends  essentially  upon  the  education  of  its  citi- 
zens. Ignorance  tends  to  make  men  idle  and  vicious.  On 
the  other  hand,  education  not  only  teaches  them  better 
ways  of  living,  but  impels  them  to  follow  the  better  ways, 
and  gives  them  higher  purposes  in  life. 

2.  A  Political  Necessity. — Bat  further,  we  believe  that 
a  government  by  the  people  is  better  adapted  than  any 
other  to  promote  the  general  welfare  where  the  people  are 
fitted  to  govern.  But  if  the  people  are  not  properly  edu- 
cated, they  are  incapable  of  self-government.  Some  chil- 
dren are  educated  at  private  schools.  ^  But  very  many  are 
unable  to  pay  for  the  education  of  their  children  in  that 
way,  and  therefore  each  State  has  established  a  system  of 
common  scliools,  at  which  the  children  of  all  may  be  taught 
at  the  public  expense.  These  are  the  schools  we  shall 
treat  of  in  this  chapter.  It  is  to  its  common-school  sys- 
tem that  the  United  States  owes  much  of  its  prosperity  as 
a  nation.  This  system  has  been  developed  more  highly 
at  the  North  than  at  the  South.  But  the  constitutions 
adopted  in  the  Southern   States  since  the  late  civil  war 


66  State  Governments. 

, ■ 

have  made  much  more  adequate  proyision  for  this  neces- 
sity than  existed  in  those  States  previously. 

3.  Support. — The  schools  are  supported  chiefly  by  taxa- 
tion. In  some  cases  those  who  send  their  children  there 
have  to  pay  a  higher  rate  than  others.  But  in  almost  all 
the  States  there  is  provided  a  school  fund,  the  income  from 
which  is  applied  to  aid  in  their  support.  A  fund  is  a 
sum  of  money,  the  income  from  which  is  set  apart  for  a 
particular  purpose.  Thus  the  interest  of  a  school  fund  is 
applied  in  building  school-houses,  paying  teachers,  etc. 
The  whole  amount  expended  on  common  schools  in  the 
United  States  in  1870  was  about  $64,000,000. 

4.  Creation  of  School  Funds. — These  were  created  in  the 
older  States  by  the  State's  appropriating  certain  lands 
owned  by  it  to  that  purpose.  They  were,  in  many  cases, 
largely  increased  by  certain  moneys  received  from  the 
United  States.  In  1836  there  had  accumulated  in  the 
national  treasury  about  thirty  millions  of  dollars  over  and 
above  what  was  needed  for  the  support  of  the  government. 
By  an  act  of  Oongi-ess,  this  surplus  revenue  was  distributed 
among  the  States  then  existing,  to  be  kept  by  them  until 
called  for  by  Congress.  That  it  never  will  be  called  for  is 
now  almost  certain.  Many  of  the  States  have  appropriated 
large  portions  of  their  respective  shares  for  school  pur- 
poses. From  its  having  been  said  to  be  only  deposited  with 
the  States,  this  fund  is  sometimes  called  the  United  States 
deposit  fund.  As  to  the  Western  States,  at  an  early 
period,  while  most  of  the  territory  from  which  they  have 
been  formed  was  yet  the  property  of  the  United  States, 
and  uninhabited,  Congress  passed  acts  by  which  a  certain 
proportion  of  the  land  in  every  township  is  reserved  for  the 
support  of  schools  therein.  By  these  acts,  in  some  of  those 
States  one  thirty-sixth,  in  others  one  eighteenth  of  the  whole 
State  has  been  thus  appropriated,  besides  smaller  portions 


Executive  Department  67 

granted  for  the  benefit  of  a  university  in  each  State.  In 
States  which  may  be  hereafter  formed  out  of  existing  terri- 
tories, land  will  be  reserved  in  the  same  way.  The  whole 
amount  of  the  permanent  common-school  funds  in  the 
United  States  in  1872  was  calculated  to  be  about  $65,000,- 
000.  The  income  from  this  is  applied  to  school  purposes 
every  year. 

6.  Districts. — The  towns,  or  townships,  of  a  State  are 
generally  divided  into  districts  of  proper  size,  in  each  one 
of  which  is  established  a  school,  to  which  all  the  children 
of  the  district  may  go,  free  of  expense.  These  schools  are 
sometimes  called  district  schools,  sometimes  common  schools, 
and  sometimes  public  schools.  Each  district  has  appor- 
tioned to  it  its  share  of  the  income  of  the  school  fund,  and 
the  rest  of  the  money  needed  to  support  the  school  is  raised 
from  the  inhabitants  of  the  district  or  the  State  by  tax- 
ation. One  or  more  trustees  or  directors  are  chosen  in  each 
district  to  manage  the  school  affairs. 

6.  State  Superintendent. — In  many  States  there  is  an 
oflficer  called  the  state  superinteiident  of  puUic  schools,  or 
superintendent  of  public  instruction.  The  superintendent 
collects  information  relating  to  the  schools;  the  number  of 
children  residing  in  each  district  and  the  number  taught; 
the  number  of  school-houses,  and  the  amount  yearly  ex- 
pended; and  other  matters  concerning  the  operation  and 
effects  of  the  common-school  system.  Sometimes  he  also 
apportions  the  money  arising  from  the  state  funds  among 
the  several  counties.  He  reports  to  the  legislature  at  every 
session  the  information  he  has  collected,  and  suggests  such 
improvements  in  the  school  system  as  he  thinks  ought  to 
be  made.  There  are  officers  in  each  county  or  town  to  aid 
him  in  this  work.  There  are  also  officers  in  each  county 
or  town  who  examine  the  teachers  periodically  to  see  if 
they  are  competent. 


Btate  Governments. 


7.  Grades. — Public  schools  are  divided  into  three  grades: 
primarij  sciiools,  for  the  youngest  pupils;  griminia?'  schools, 
in  which  are  taught,  besides  the  ordinary,  some  of  the 
higher,  branches  of  study;  and  higJt  schools,  for  the  most 
advanced,  in  which  are  taught  the  studies  necessary  for 
a  business  education,  and  frequently  the  languages  and 
higher  mathematics.  But  it  is  only  in  the  largest  places 
that  the  higher  grades  exist.  Mimj  contend  that  the  pub- 
lic should  not  be  taxed  to  furnisli  a  higher  education,  but 
that  it  should  be  left  to  the  private  citizen.  Others  main- 
tain that  the  general  good  demands  that  some  should  be 
highly  educated.  But,  though  many  States  have  high 
schools,  universities,  and  other  educ  tional  institutions, 
supported  or  aided  by  the  State,  the  ^  feat  body  of  schools 
m  the  country  still  are  of  the  lower  gr  ;de. 

8.  Compulsory  Attendance. — In  gen  3ral,  the  State  does 
not  compel  parents  to  send  their  children  to  school,  but 
relies  upon  their  own  sense  of  duty  and  interest.  But  in 
a  few  States  it  does,  and  every  child  is  compelled  to  go  to 
some  school,  public  or  private,  a  certain  portion  of  every 
year  between  the  ages  of  seven  and  fourteen.  And  the 
idea  is  gaining  strength  in  the  country  that  the  interest  of 
the  whole  people  requires  that  every  child  should  be  edu- 
cated to  a  certain  degree. 

9.  Normal  Schools. — These  are  schools  in  which  per- 
sons are  trained  to  be  teachers.  If  a  State  is  to  furnish 
education  to  its  citizens,  it  niust  provide  suitable  educa- 
tors, and  therefore  most  States  have  established  one  or  more 
of  these  schools.  They  are  free  to  any  one,  but  in  return 
the  person  taught  must  serve  a  certain  length  of  time  (two 
or  three  years)  as  a  teacher  in  the  common  schools  of  the 
State.     In  that  way  he  pays  for  his  education. 


Executive  Department  69 


CHAPTER  XYII. 

PUBLIC    INSTITUTIONS. 

1.  Duty  of  Government. — We  have  seen  that  a  govern- 
ment ought  to  provide  means  not  only  for  the  protection 
of  the  lives  and  property  of  its  citizens,  but  also  for  their 
education.  But  there  are  further  duties  which  it  owes  to 
its  citizens.  It  ought  to  furnisli  protection  and  aid  to 
those  who  are  unfortunate,  the  insane,  the  blind,  orphan 
children,  and  others  who  are  unable  to  care  for  themselves. 
So,  too,  if  there  is  any  great  enterprise  in  which  all  the 
people  of  the  State  are  interested,  but  which  is  too  large  or 
too  costly  to  be  carried  on  by  private  individuals,  the  State 
should  render  aid.  Again,  a  State  should  exercise  some  con- 
trol over  the  operations  of  corporations  having  large  powers, 
such  as  railroads  and  banks,  in  order  to'  prevent  fraud 
upon  the  people.  These  duties  are  important  functions 
of  the  executive  department. 

2.  Asylums. — Every  State  establishes  and  supports  some 
of  these  for  the  insane,  blind,  deaf  and  dumb,  inebriate, 
orphans,  and  others.  At  them  support  and  medical  aid  is 
furnished  to  such  as  have  no  means  of  providing  for  them- 
selves. Counties,  towns,  and  cities  often  maintain  institu- 
tions of  the  same  kind. 

3.  Canals. — These  do  not  exist  in  all  the  States,  and  in 
some  they  are  constructed  and  managed  by  private  cor- 
porations. But  in  others  they  are  state  works,  built  by 
the  State  and  managed  by  officers  elected  by  the  people. 
New  York,  Pennsylvania,  and  Ohio  have  many.  Their 
object  is  to  furnish  cheap  transportation,  and  at  one  time 
they  were  considered   of  vast  importance,  but  raih-oads 


70  State  Governments, 

have  in  a  great  measure  taken  their  place.  Where  the 
State  undertakes  such  an  enterprise,  very  often  a  fund  is 
provided  by  the  State  the  income  of  which  is  applied  to 
the  object,  and  the  United  States  increases  this  fund  by 
grants  to  it  of  public  lands,  because  the  canal  is  a  benefit 
not  only  to  the  people  of  the  State,  but  also  to  all  the 
people  of  the  Nation. 

4.  Railroads. — These  are  seldom  state  works,  but  they 
often  receive  aid  from  the  State  in  the  form  of  money 
lent  them,  public  land  granted  to  them,  or  state  guaran- 
ties of  their  bonds.  In  a  certain  other  respect  all  railroads 
are  aided  by  the  State.  The  property  which  a  railroad 
company  requires  very  often  cannot  be  purchased,  as  the 
owners  will  not  sell,  and  no  person  or  corporation  has,  in 
itself,  the  right  to  compel  them  to  sell.  But  a  State  has 
the  right  to  take  any  one's  property  for  public  use  on  pay- 
ing its  value.  Tliis  is  called  the  right  of  eminent  domain, 
and  this  right  the  State  delegates  to  the  railroad  company 
for  the  time  being.  Appraisers  are  appointed  who  value 
the  land,  and  on  payment  of  that  price  the  company  takes 
it.  The  land  necessary  for  a  canal  is  acquired  in  the  same 
way. 

6.  Control  of  Corporations. — The  State  generally  exer- 
cises some  control  over  certain  corporations  which,  like 
railway  or  canal  companies,  banks,  and  insurance  com- 
panies, have  large  powers  and  privileges.  This  is  to  pre- 
vent their  being  used  to  the  fraud  and  injury  of  the  public. 
In  some  States  there  are  departments,  such  as  the  hank 
department,  or  the  insura7ice  department,  all  subordinate 
branches  of  the  executive  department,  which  are  required 
to  exercise  supervision  over  the  corporations  belonging  to 
their  department  within  the  State.  They  collect  informa- 
tion with  regard  to  them,  their  property  and  business,  by 
means  of  examinations  and  of  annual  reports  which  the  cor- 


Executive  Department,  71 

porations  are  required  to  make,  and  this  information  is 
published.  When  state  banks  issued  bills  (which  were 
only  their  promises  to  pay  money),  they  were  often  re- 
quired to  deposit  a  certain  amount  of  property  with  the 
State  to  secure  those  who  used  their  bills  as  money  against 
loss.  So,  too,  insurance  companies  are  sometimes  required 
to  make  deposits  with  the  government  to  secure  their 
policy-holders.  There  are  other  ways  in  which  a  State 
exercises  control  over  corporations. 

6.  State-Prisons. — These  are  prisons  maintained  by 
the  State,  in  which  criminals  convicted  of  the  higher 
crimes  are  confined.  The  county  jails  and  penitentiaries 
are  for  the  lower  grades  of  criminals.  Convicts  are  forced 
to  work  while  confined.  In  many  States  their  labor  is 
leased  by  the  State  to  certain  contractors,  who  pay  the 
State  as  for  so  many  laborers.  Thus  state-prisons  are 
sometimes  rendered  self-supporting. 

7.  State  Debts. — Very  often  the  public  works  under- 
taken by  a  State  require  more  money  than  can  je  con- 
veniently raised  at  once  by  taxation.  So,  too,  perhaps  the 
chief  benefit  is  going  to  accrue,  not  to  people  bvir.g  at  the 
time  the  work  is  done,  but  many  years  later,  and  therefore 
posterity  should  bear  some  share  of  the  burden.  In  such 
case  the  State  borrows  the  money  and  issues  its  bonds  for 
it,  also  called  state  stock.  Counties,  towns,  and  cities,  in 
the  same  way,  often  incur  debt  and  issue  bonds  for  public 
works.  But  there  is  this  difference:  counties,  towns,  and 
cities  may  be  sued  in  the  courts,  but  there  is  no  way  for  a 
private  individual  to  force  a  State  to  pay  its  debts.  Such 
refusal  to  pay  is  called  repudiation,  and  several  of  the 
States  have  repudiated  their  debts  in  part.  For  the  reason 
that  there  is  no  remedy,  repudiation  is  the  more  dishonor- 
able. In  the  late  Civil  War  the  Southern  States  contracted 
large  debts,  but  these  the  United  States  Constitution  for- 


72  State  Governments. 

bids  them  to  pay.  No  government  could  recognize  as  just, 
or  allow  to  be  paid,  if  it  could  prevent  it,  any  debts  in- 
curred in  a  rebellion  against  it. 


CHAPTER  XVIII. 

MILITIA. 

1.  Meaning  of  Militia. — Every  nation  has  its  military 
force  to  resist  foreign  enemies  and  crush  rebellion.  It 
consists  of  two  portions,  the  standing  army  and  the 
militia.  The  standing  army  is  all  the  time  organized, 
equipped,  and  drilled,  and  its  members  have  no  other 
occupation.  The  militia  consists  of  all  the  other  able- 
bodied  men  in  the  nation  (between  certain  ages),  but  it  is 
not  called  into  service  except  in  time  of  war  or  insurrec- 
tien.  In  this  country  the  Nation  has  a  small  standing 
army,  and  its  militia  consists  of  the  militia  of  all  the 
States.  The  States  have  no  standing  army,  but  each  has 
its  militia. 

2.  Of  Whom  Composed.—  The  militia  of  a  State  consists 
of  all  able-bodied  male  citizens  of  the  United  States  be- 
tween the  ages  of  eighteen  and  forty-five  years  who  reside 
in  the  State,  except  such  as  are  exempt  by  the  laws  of  the 
States  and  of  the  United  States.  Persons  exempt  by  the 
laws  of  the  State  are  generally  members  of  the  state  legis- 
lative, executive,  and  judicial  departments,  clergymen, 
teachers,  physicians,  firemen,  and  members  of  military 
companies   who  have   served   a   certain   time.*     Persons 

*  In  many  States  those,  also,  are  exempt  who  have  conscientious 
scruples  as  to  whether  war  is  ever  right,  such  as  the  Quakers. 


Bxecutive  DepaHment.  73 

exempt  by  United  States  laws  are  members  of  the  national 
legislative,  executive,  and  judicial  departments,  pilots, 
mariners,  and  a  few  others. 

3.  Commaiider-in-Cliief.  —  By  the  constitutions  of  the 
several  States,  the  governors  are  made  the  commanders-in- 
chief  of  the  militia  of  their  respective  States.  The  gov- 
ernor has  power  to  call  it  out  in  time  of  insurrection  or 
rebellion,*  and  when  called  out  he  exercises  the  usual 
powers  of  commander  over  it.  He  cannot,  however,  send 
any  member  out  of  the  State  without  his  own  consent. 

4.  Organization. — The  militia,  when  organized,  is  di- 
vided in  the  usual  way'  into  brigades,  regiments,  com- 
panies, etc.,  with  the  usual  officers:  adjutant-general, 
colonels,  captains,  etc.  In  some  States  the  officers  are 
appointed  by  the  governor  or  the  legislature;  in  others 
they  are  elected  by  the  men  they  are  to  command.  •  But 
in  most  of  the  States  the  militia  remains  practically  un- 
organized. 

6.  Training. — For  many  years  after  the  Eevolution, 
when  the  militia  was  more  or  less  organized  all  the  time,  it 
was  called  out  annually  in  each  State  for  the  purpose  of 
training;  but  these  annual  trainings  were  seen  to  be  of  so 
little  value  that  they  gradually  fell  into  disuse.  At  pres- 
ent the  militia  in  this  country  is  not  much  more,  practi- 
cally, than  an  imaginary  body,  and  the  great  body  of  the 
people  have  no  military  duties  to  perform. 

6.  Volunteer  Regiments. — But  occasions  do  arise  when 
it  is  necessary  for  a  State  to  have  some  organized,  equipped, 
and  drilled  force  at  hand.  This  necessity  is  supplied  by  the 
volunteer  companies,  or  regiments,  existing  in  most  of  the 


*  An  insurrection  is  an  attempt  of  persons  to  prevent  the  execu- 
tion of  a  law.  Rebellion  generally  means  nearly  the  same;  but  more 
properly  it  signifies  a  revolt,  or  an  attempt  to  overthrow  the  govern- 
ment to  establish  a  different  one. 


74  State  Oomrnments. 

States.  These  organize  themselves,  elect  their  own  members 
and  officers,  select  their  own  uniform,  and  the  branch  of  the 
service  to  which  they  will  attach  themselves.  The  State 
usually  grants  them  more  or  less  aid,  in  the  way  of  arms, 
armories,  etc.  When  organized,  they  come  under  the  mili- 
tary laws  of  the  State,  and  subject  to  the  orders  of  the 
commander-in-chief,  in  the  same  manner  as  the  militia  is, 
and  he  can  call  them  out  when  necessary.  These  regi- 
ments are  called  in  some  States  the  national  guard,  and 
popularly  they  are  called  the  rnilitia. 

7.  United  States  Militia. — We  have  said  the  militia 
of  the  United  States  consisted  of  the  militia  of  all  the 
States.  The  President  has  power  to  call  it  out  at  times 
when  the  standing  army  is  not  sufficient,  and  when  so 
called  put  it  passes  out  of  state  control  and  under  that  of 
the  United  States.  But  this  refers  to  the  unorganized 
militia.  Over  the  volunteer  regiments  spoken  of  in  the 
preceding  section  the  United  States  has  no  control.  It 
is  not  probable  that  the  unorganized  militia  will  ever  be 
called  out  by  the  national  government,  but  that  the  latter, 
like  the  States,  will  rely  on  the  formation  of  volunteer 
regiments  when  the  necessity  arises.  In  the  late  Civil 
War  most  of .  the  United  States  army  was  composed  of 
volunteer  regiments  formed  in  tlie  loyal  States,  and  then 
mustered  into  the  United  States  service. 


Judicial  DepartmenL  75 


SECTION  rv. 

Judicial  Depaetment. 


CHAPTER  XIX. 

COURTS. 

1.  Necessity. — The  judicial  department  consists  of  the 
courts  of  a  State.  We  have  seen  that  the  legislative  de- 
partment makes  laws  and  the  executive  department  carries 
them  out;  but  there  is  one  other  function  of  govern- 
ment which  j)i'operly  comes  in  between  the  making  and 
the  execution  of  the  law.  This  is  its  application  to  par- 
ticular cases  when  disputes  arise.  Very  often  in  a  particu- 
lar case  it  will  be  hard  to  tell  what  the  truth  is,  as  one 
party  will  say  one  thing  and  the  other  another;  and  again 
one  side  will  claim  that  the  law  does  not  include  his  case,  and 
the  other  side  will  claim  that  it  does.  These  points  must 
be  decided  before  the  law  can  be  executed.  The  executive 
department  might  decide  them,  but  justice  is  more  likely 
to  be  done  if  the  one  that  decides  has  nothing  else  to  do 
with  the  case.  !Por  this  reason  the  separate  judicial  de- 
partment is  established.  The  higher  courts  of  a  State 
are  usually  established  by  its  constitution,  the  lower  courts 
by  the  legislature. 

2.  Diversity. — There  is  great  diversity  among  the  States 
in  the  names  and  powers  of  the  different  courts.  No  two 
States  are  exactly  alike.     But  the  following  sketch  gives  a 


76  ^tate  Oomrnments, 

general  idea  of  the  judicial  system  prevailing  in  most  of 
the  States. 

3,  Court  for  the  Trial  of  Impeachments. — This  is  the 
name  applied  to  the  upper  house  of  the  legislature  when 
trying  a  public  officer  for  malfeasance  (i.e.  corrupt  con- 
duct) in  office.*  Impeaclimeiit  is  the  formal  act  of  the 
lower  house  by  which  it  makes  the  charge  against  him.  f 
Generally  the  lower  house  has  the  sole  right  of  impeach- 
ment, and  the  upper  house  the  sole  right  to  try  impeach- 
ments.    On  such  trial  the  upper  house  is  in  reality  a  court.  J 

4.  Supreme  Court. — This  is  the  name  usually  given  to 
the  highest  court  —  of  which  there  is  only  one  —  in  the 
State.  It  consists  of  several  judges  (very  often  three),  and 
has  usually  only  appellate  jurisdiction.  §  Appeals  maybe 
taken  to  it  in  l)oth  civil  and  criminal  cases,  ||  from  the  next 
lower — the  Circuit — courts. 

*  As,  if  a  governor,  for  money  oifered  hhn,  should  approve  and 
sign  a  law;  or  a  judge  should,  for  money  or  from  some  other  selfish 
or  personal  motive,  give  a  wrong  judgment. 

f  It  must  be  remembered  that  impeachment  is  not  the  conviction 
of  the  offence,  but  only  the  accusation.  It  is  analogous  to  an  indict- 
ment by  a  grand  jury.  (See  page  84.)  It  may  happen,  therefore,  that  an 
officer  is  impeached  and  afterward  acquitted  on  the  trial,  as  Presi- 
dent Andrew  Johnson  was  in  1868. 

I  This  practice  has  come  from  Great  Britain,  where  the  impeach^ 
ment  is  made  by  the  House  of  Commons,  and  the  House  of  Lords  is 
the  High  Court  of  Impeachment. 

§  The  word  jurisdiction  is  from  the  Latin  jus,  law,  and  didio,  a 
pronouncing  or  speaking.  Hence  the  jurisdiction  of  a  court  means 
the  class  of  cases  in  which  it  has  power  to  pronounce  the  law.  A 
court  is  said  to  have  oi'iginal  jurisdiction  wlien  the  case  may  originate 
(be  commenced)  in  it;  it  has  appellate  jurisdiction  when  it  may  hear 
the  case  on  appeal  from  a  lower  court. 

I  Civil  cases  are  those  between  private  parties  for  debt  or  for  some 
injury  to  person  or  property.  Criminal  cases  are  those  in  which  the 
State  seeks  to  punish  one  for  some  criminal  offence. 


Judicial  Department,  77 

6.  Circuit  Courts.*  —  Of  these  there  are  gencnilly  a 
number  (from  ten  to  thirty)  in  every  State,  one  for  each 
district  into  which  the  State  is  divided.  In  many  States 
they  are  called  district  courts^  because  there  is  one  in  each 
district;  in  a  few  they  correspond  to  the  superior  courts, 
so  called  because  they  are  of  higher  grade  than  the  justices' 
courts.  They  have  original  jurisdiction,  in  general,  of  all 
classes  of  cases,  both  civil  and  criminal,  and  are  the  courts 
in  which  the  great  body  of  trials  are  had.  They  also  hear 
appeals  from  the  lower  courts. 

6.  Justices  of  the  Peace. — In  each  town,  or  similar 
division,  there  are  usually  sevei-al  of  these  officers.  Each 
justice  holds  court,  and  has  power  to  try  civil  cases  which 
involve  small  amounts  (in  some  States  it  must  be  less  than 
$100,  in  others  less  than  $50),  and  to  try  persons  who  have 
committed  small  offences.  They  also  have  important 
powers  with  regard  to  arresting  and  examining  those 
accused  of  higher  crimes.  (See  page  85. )  In  many  States, 
also,  they  have  executive  duties. 

7.  Probate  Courts. — There  is  usually  one  of  these  in 
every  county,  composed  of  a  single  judge.  They  are  quite 
different  in  character  from  the  courts  already  described. 
Their  powers  and  duties  relate  to  the  estates  of  deceased 
persons,  to  see  that  they  go  to  the  persons  entitled  to  them. 


*Tbey  derive  their  name  from  tliis  circumstance:  Each  court  has 
its  district,  including  several  counties,  and  as  the  law  usually  re- 
quires, for  the  convenience  of  suitors,  that  the  court  be  held  once  or 
twice  a  year  in  eacli  county,  tlie  judges  travel  from  one  county  to 
another. 

In  some  of  the  States  of  New  England  this  system  of  courts  does 
not  exist.  Tlie  liighest  court  performs  their  duties,  liaving  both 
original  and  appellate  jurisdiction.  It  will  be  noticed  that  New 
England  is  different  :>Qoa  the  rest  of  the  country  in  many  of  her 
political  institutiona. 


78  Btate  Governments. 

They  take  proof  of  wills  and  empower  executors  to  act.* 
Where  a  person  dies  without  a  will  the  prohate  court  ap- 
points an  administrator,  who  distributes  the  personal 
property  (for  distinction  between  personal  and  real  prop- 
erty, see  page  61 )  among  the  relatives  to  whom  it  belongs 
by  law.f  It  has  power  to  remove  the  executor  or  adminis- 
trator if  he  does  not  do  his  duty;  to  settle  his  accounts; 
and  decide  disputes  which  arise,  as  to  the  distribution  of 
the  estate.  Probate  courts  also  take  charge  of  the  estates 
of  minors  whose  parents  have  died,  and  appoint  guardians 
for  them.  For  this  reason  they  are  sometimes  called 
orphans^  courts.  Appeals  may  be  taken  from  these  courts 
to  the  Supreme  Court,  or  sometimes  to  the  Circuit  Courts. 

8.  Courts  of  Chancery  exist  in  several  States.  They 
have  power  to  grant  certain  kinds  of  relief  that,  in  the 
States  where  they  exist,  the  other  courts  can  not;  such  as 
compelling  a  man  to  perform  a  contract,  instead  of  award- 
ing money  as  damages  for  his  not  doing  it,  or  granting  an 
injunction  against  one's  doing  an  unlawful  act.  These  are 
also  called  courts  of  equity.  It  is  unnecessary  to  enumer- 
ate their  powers,  as  in  most  States  they  do  not  exist,  and 
there  the  other  courts  have  all  their  powers. 

9.  Other  Courts. — In  some  States  there  are  other  courts 
with  various  powers.  County  courts,  or  courts  of  common 
pleas,  exist  in  some,  having  jurisdiction  in  civil  cases, 
somewhat  higher  than  justices'  courts;  courts  of  sessions 

*  A  will  is  a  writing  by  which  a  person  directs  to  whom  his  prop- 
erty shall  be  given  after  his  death.  The  Latin  prohatus  means  proof, 
from  which  the  courts  derive  their  name.  An  executor  is  a  person 
appointed  in  a  will  to  carry  out  its  provisions. 

f  An  administrator  has  no  jurisdiction  over  the  land  owned  by 
the  deceased.  That  the  heirs  can  take  possession  of  without  any 
authority  from  the  court.  An  executor,  in  general,  executes  the  will 
both  as  regards  personal  and  real  property. 


Judicial  Department  79 

and  courts  of  oyer  and  terminer,  where  they  exist,  are 
courts  of  criminal  jurisdiction;  police  courts  are  often 
established  in  cities  with  jurisdiction  to  try  the  lower 
criminal  offences;  large  cities  generally  have  additional 
courts. 

10.  Elections  and  Terms. — Judges  are  sometimes  elected 
by  the  people,  sometimes  by  the  legislature,  and  sometimes 
appointed  by  the  governor.  The  terms  of  office  vary, 
being  generally  six  to  ten  years  in  the  higher  courts,  while 
justices  of  the  peace  are  elected  or  appointed  every  one  or 
two  years.  In  a  few  States  (in  New  England)  the  judges 
of  the  highest  court  hold  office  for  life,  or  until  seventy 
years  of  age.  Like  legislative  and  executive  officers,  they 
receive  salaries  fixed  by  law. 


CHAPTEK  XX. 

LEGAL    PROCEEDINGS. 

'       '         a.  Impeachment. 

1.  Impeachment. — A  complaint  against  the  officer  hav- 
ing been  brought  formally  before  the  lower  house  of  the 
legislature,  it  votes  whether  he  shall  be  impeached  or  not, 
and  if  it  is  decided  that  there  are  sufficient  grounds  for  the 
charge,  articles  of  impeachment  are  prepared  and  delivered 
to  the  upper  house,  and  a  committee  of  managers  is  selected 
from  the  members  of  the  lower  house  to  conduct  the  prose- 
cution. 

2.  Trial. — The  upper  house  (senate)  then  convenes  as  a 
court,  the  accused  person  is  summoned  to  answer  the  charge, 
and  a  time  is  fixed  for  the  trial.  The  trial  is  conducted  in 
much  the  same  way  as  a  trial  in  other  courts,  and  at  the 


80  State  (jrovernments, 

close  the  senate  votes  upon  his  guilt,  a  two-thirds  vote  being 
generally  required  to  convict.  If  convicted,  the  court  may 
remove  him  from  office,  or  disqualify  him  to  hold  any  oflBce 
in  the  State,  for  a  time,  or  for  life;  or  may  both  remove  and 
disqualify  him.  This  court  can  pronounce  no  other  sen- 
tence. But  if  the  act  committed  is  a  crime,  the  offender 
may  also  be  indicted,  tried,  and  punished  in  a  court  of 
justice. 

I.  Proceedings  in  Ordinary  Civil  Cases, 

3.  Parties. — In  both  civil  and  criminal  cases  the  party 
suing  is  called  the  plaintiff  (i.e.  the  one  complaining), 
and  the  party  sued  the  defendant  (i.e.  the  one  defending 
himself).* 

We  will  now  give  a  sketch  of  the  ordinary  steps  in  a 
civil  action  in  their  order. 

4.  Summons. — Except  in  the  lowest  courts,  all  the  pro- 
ceedings in  a  lawsuit  are  taken  by  means  of  written  papers. 
This  is  that  they  may  be  preserved.  The  first  paper  is 
ordinarily  a  summons.  This  is  a  writ  issued  by  the  court 
at  the  instance  of  the  plaintiff,  and  served  upon  the  defend- 
ant, summoning  him  to  appear  in  court.  Generally  this 
appearance  is  made  not  by  coming  into  court  in  person. 


*  In  a  criminal  case  the  State  is  the  plaintiff,  and  tlie  accused  the 
defendant.  The  State,  i.e.  the  whole  people,  are  the  ones  injured 
Dy  a  crime.  For  example,  in  New  York  State  the  title  of  a  criminal 
case  is  "  The  People  of  the  State  of  New  York  against  John  Smith." 
Also,  the  person  against  whom  the  offence  is  committed  has  his  civil 
remedy,  a  suit  for  damages,  against  the  offender.  So  that  in  the  case 
of  a  criminal  offence  (for  instance,  assault  and  batter})  the  injured 
party  can  sue  the  offender  for  damages,  and  the  State  can  punisU 
Lim  at  the  same  time, 


Judicial  Department.  81 

but  by  the  defendant's  attorney*  filing  a  notice  in  the 
clerk's  office.  If  he  does  not  appear  within  a  certain  time, 
the  plaintiff  may  take  judgment  and  issue  execution  imme- 
diately.    (See  page  83.) 

5.  Pleadings. — If  the  defendant  appears,  the  plaintiff  is 
then  required  to  file  or  serve  his  declaration  or  complaint, 
setting  forth  what  he  claims,  and  the  facts  on  which  he 
bases  the  claim.  The  defendant  then  files  or  serves  his 
plea,  or  ansioer,  or  demurrer, \  setting  forth  his  defence; 
that  is,  the  reasons  why  he  thinks  he  should  not  be  com- 
pelled to  do  what  the  plaintiff  demands.  These  papers  are 
called  the  pleadings.  Sometimes  ofcher  papers  are  neces- 
sary. If  the  pleadings  agree  as  to  the  facts,  the  matter  is 
then  presented  to  the  court,  and  it  makes  its  decision, 
without — what  is  popularly  called— a  trial.  But  if  the 
pleadings  do  not  agree  as  to  the  facts — if,  for  instance,  the 
plea  denies  any  fact  the  declaration  sets  out — this  dispute 
must  be  settled  by  a  trial. 

6.  Jury. — Trials  may  be  had  before  the  court  alone,  but 
in  many  cases  either  party  may  claim  the  right  to  have 
disputed  facts  decided  by  a  jury. I  In  the  higher  courts  a 
jury  consists  of  twelve  men;  in  justices'  courts,  of  six. 
At  every  term  of  court  (except  in  justices'  courts)  a  num- 
ber of  men  residing  in  the  county  are  summoned  to  attend 
court  to  serve  as  jurors  during  the  term,  which  lasts  one 
or  two  weeks.  From  these  the  jury  in  each  particular  case 
is  chosen  by  lot. 


*  In  this  connection  an  attorney,  or  counsel,  is  a  lawyer  who  con- 
ducts a  lawsuit  for  a  person.  In  a  broader  sense,  attorney  often 
means  an  agent  to  transact  any  business. 

f  These  words  have  different  meanings,  unnecessary  to  state  here. 

X  So  important  is  tliis  right  considered  that  it  is  guaranteed  to 
every  one,  in  certain  cases,  by  most  of  the  State  constitutions.  It 
YfV^Q  derived  from  England,  where  it  has  been  enjoyed  many  centuries, 


^ate  Gomrnments, 


7.  Trial — As  soon  as  the  pleadings  are  filed  or  served 
either  party  may  summon  the  other  to  trial.  If  either 
party  does  not  appear  at  the  trial,  the  other  may  have  judg- 
ment against  him.  If  the  witnesses  are  unwilling  to  come, 
a  subpoena  (pronounced  suppena)  may  be  issued  to  them. 
This  is  a  writ  from  the  court  commanding  them  to  attend, 
under  heavy  penalties  if  they  do  not.  A  judge  always  pre- 
sides at  the  trial,  and  decides  whether  the  evidence  offered 
by  either  side  is  proper  to  be  admitted  in  the  case.  The 
usual  course  of  proceeding  is  as  follows  :  the  plaintiff's 
counsel  opens  the  trial  by  briefly  stating  what  the  case  is, 
and  then  examines  such  witnesses  as  he  chooses,  the 
defendant's  counsel  having  the  right  to  cross-examine  each 
one,  if  he  thinks  the  testimony  needs  to  be  made  clearer; 
this  examination  and  cross-examination  is  made  by  the 
counsel  asking  questions  which  the  witness  must  answer, 
and  the  witness  is  not  allow^ed  to  do  anything  but  answer 
the  questions  put  him;  after  the  plaintiff  has  presented  all 
his  witnesses,  the  defendant's  counsel,  in  turn,  briefly  states 
what  his  defence  is,  and  examines  his  witnesses,  the  other 
side  cross-examining  each  one  if  he  desires;  the  defendant's 
counsel  then  makes  an  argument  upon  the  case,  and  the 
plaintiff's  counsel  closes  with  his  argument.  This  ends  the 
trial  if  it  is  before  the  court  alone.  But  if  it  is  before  a 
jury,  the  judge  delivers  a  charge  to  the  jury,  giving  them  a 
summary  of  the  evidence  on  both  sides  and  pointing  out  to 
them  the  points  they  are  to  decide.  The  jury  then  retire, 
and  deliberate  in  secret. 

8.  Verdict. — If  the  jury  cannot  agree,  they  are  discharged, 
and  another  trial  may  be  had;  but  if  they  agree,  they  return 
to  court  and  announce  their  verdict.  This  word  is  from 
the  Latin  veriim,  true,  and  dictum,  saying.  In  most 
States  all  the  members  of  a  jury  must  agree  before  a  verdict 
can  be  rendered, 


Judicial  Department,  83 

9.  Judgment. — After  a  verdict,  or  decision  of  a  case  by 
the  court,  formal  judgment  is  entered  (i.e.  filed  or  re- 
corded), and  the  successful  party  may  add  as  a  part  of  it 
what  are  called  costs.  These  are  certain  sums  of  money 
allowed  to  him  to  compensate  for  his  expenses.  It  is  con- 
sidered just  that  the  one  who  is  decided  to  be  in  the  wrong 
should  pay  all  the  expense. 

10.  Appeal. — If  the  defeated  party  thinks  justice  has 
not  been  done,  he  may  appeal  to  the  next  higher  court. 
This  court  does  not  try  the  case  oyer  again,  but  simply  ex- 
amines all  that  was  done  in  the  lower  court  to  see  if  any 
error  was  committed.  If  there  was  none,  it  affirms  the 
judgment;  but  if  any — even  a  slight — error  was  committed, 
it  reverses  the  judgment  and  grants  a  new  trial,  which  is 
conducted  in  tlie  same  way  as  the  first.  In  many  cases,  if 
either  party  is  dissatisfied  with  the  decision  of  the  higher 
court  he  may  appeal  to  a  still  higher  one,  which,  in  turn, 
affirms  or  reverses.  In  this  way  a  single  case  may  have 
three  or  four  trials,  and  five  or  six  appeals,  though  that  is 
very  unusual.  Small  cases  cannot  generally  be  appealed  to 
the  highest  court. 

11.  Execution  against  Property. — After  judgment  is 
obtained  against  one,  if  he  does  not  pay  it,  a  writ  called  an 
execution  against  the  property  may  be  issued  to  the  sheriff. 
This  commands  him  to  seize  the  debtor's  property  and  sell 
it  until  he  has  sold  enough  to  satisfy  (i.e.  pay)  the  judg- 
ment. Certain  articles,  such  as  household  goods  and 
clothing,  cannot  be  sold  by  the  sheriff. 

12.  Execution  against  the  Person. — Formerly,  in  addi- 
tion to  the  execution  against  property,  an  execution  against 
the  person  could  be  issued  in  all  cases.  This  commanded 
the  sheriff  to  put  the  debtor  in  jail  until  he  paid  the  judg- 
ment. But  now  this  extreme  reriiedy  is  abolished,  except 
in  cases  where  the  judgment  is  obtained  for  some  act  im- 


84  Btate  Governments, 

plying  moral  turi^itude,  sncli  as  libel,  assault,  fraud,  etc. 
In  cases  of  ordinary  debt,  such  as  for  goods  sold,  money 
borrowed,  etc.,  this  execution  cannot  be  had. 

c.  Proceedings  in  Criminal  Cases, 

13.  Indictment* — It  is  usual  for  state  constitutions  to 
contain  provisions  requiring  that  before  one  can  be  tried 
for  a  criminal  offence  (except  a  petty  one)  he  must  be  in- 
dicted by  a  grand  jury.  A  grand  jury  is  a  body  of  citizens 
(usually  twenty-three)  summoned  in  every  county  several 
times  during  the  year,  to  inquire  what  crimes  have  been 
committed  in  the  county.  An  indictment  is  a  formal  accu- 
sation made  by  a  grand  jury  against  a  person  that  he  has 
committed  a  crime.  The  process  of  indictment  is  as  fol- 
lows: Some  one,  usually  the  district  attorney,  brings  the 
fact  of  a  crime  to  their  notice;  the  jury  then  summon  the 
witnesses  f  named  and  examine  them;  if  twelve  of  the 
jurors  vote  that  there  is  sufficient  cause  for  putting  him  on 
trial,  the  indictment  is  drawn  up  by  the  district  attorney, 
endorsed  *^a  true  bill"  by  the  foreman  of  the  grand  jury, 
and  then  sent  to  the  court.  These  proceedmgs  are  kept 
secret,  in  order  to  prevent  the  offender's  escape. 

14.  Arrest  and  Bail. — A  warrant  may  then  be  issued  for 
the  arrest  of  the  accused.  If  arrested,  he  may  give  hail,  ex- 
cept in  cases  of  crimes  punishable  by  death,  like  murder. 
Giving  bail  consists  of  giving  a  bond,  by  which  the  bonds- 
men agree  to  pay  the  State  a  certain  sum  of  money  if  the 
prisoner  does  not  appear  when  he  is  wanted.  The  prisoner 
is  then  released  until  his  trial.     He  is  then  supposed  to  be 


*  Pronounced  inditement. 

\  No  witnesses  in  favor  of  the  accused  are  examined  by  the  grand 


Judicial  Department,  85 

in  the  custody  of  his  bondsmen,  and  they  can  arrest  him  at 
any  time. 

15.  Examination. — But  often  it  is  feared  that  if  an  in- 
dictment is  awaited  the  offender  may  escape.  In  such  case 
a  complaint  is  sworn  to  before  a  justice  of  the  peace,  or 
other  magistrate,  and  he  issues  a  warrant.  When  the 
arrest  is  made  the  accused  is  brought  before  him,  and  he 
makes  a  short  examination  of  the  case.  If  the  evidence  is 
such  that  he  thinks  the  accused  should  be  tried,  he  com- 
mits him  to  prison  to  await  the  action  of  the  grand  jury,  or 
if  the  case  be  not  indictable,  to  be  tried  at  the  next  court. 
He  may  then  give  bail. 

16.  Habeas  Corpus.* — If  the  prisoner  thinks  that  his 
arrest  is  unlawful,  he,  or  any  one  in  his  interest,  may  apply 
to  any  judge  of  a  higher  court  for  a  writ  of  liabeas  corpus. 
This  commands  the  sheriff,  or  whoever  has  him  in  custody, 
to  bring  him  before  the  judge.  The  case  is  not  tried  then, 
but  the  judge  simply  examines  the  case  to  see  whether  the 
arrest  is  lawful;  that  is,  whether  any  crime  is  charged,  or 
whether  there  is  any  proper  complaint.  If  he  decides  that 
the  prisoner  is  lawfully  held,  he  remands  him  to  prison;  if 
not,  he  orders  him  released. 

17.  Trial. — Due  notice  being  given  to  the  prisoner,  and 
a  counsel  to  conduct  his  case  being  furnished  him  by  the 
State,  if  he  has  none,  he  is  brought  to  trial,  and,  except  in 

*  This  is  tiie  most  famous  writ  in  the  law.  It  applies  to  all  cases 
where  one  person  is  unlawfully  restrained  by  another,  as  well  as  to 
persons  charged  with  criminal  offences.  It  is  often  used  by  a  father 
to  gain  possession  of  his  child  which  has  been  unlawfully  taken  from 
him.  So  important  is  it  considered  that  state  constitutions  often 
provide  that  the  right  of  having  the  writ  shall  not  be  suspended  by 
the  legislature  except  in  time  of  rebellion  or  invasion.  It  protects 
the  right  of  personal  liberty  by  causing  the  ground  of  arrest  or  re- 
straint to  be  examined  by  a  competent  judge. 


86  Btate  Governments'. 

petty  cases,  has  the  constitutional  right  to  be  tried  by  a 
jury. '  He  is  first  called  upon  to  plead  to  the  indictment 
(i.e.  answer  it),  and  he  may  plead  '^guilty"  or  "not 
guilty."  This  is  called  arraignment.  If  he  pleads 
"guilty,"  he  is  immediately  sentenced;  if  "not  guilty," 
the  trial  proceeds.  The  course  of  the  trial  is  the  same  as 
in  civil  cases:  the  opening  addresses;  examination  and  cross- 
examination  of  the  witnesses  on  each  side;  the  arguments 
of  counsel ;  the  charge  ;  and  ihe  verdict  (see  page  82). 
After  verdict  he  is  discharged  or  sentenced,  according  as 
he  is  found  innocent  or  guilty. 

d.   Other  Proceedings. 

18.  In  Prolate  Courts. — Here  the  proceedings,  though 
Bomewhat  different,  bear  a  resemblance  to  those  in  other 
courts.  Generally  there  is  no  contest;  but  when  there  is 
the  court  proceeds  in  much  the  same  way  as  other  courts, 
but  without  a  jury. 

19.  Special  Proceedings. — The  proceedings  already  de- 
scribed do  not  embrace  all  the  varieties.  Courts  are  applied 
to  for  a  gi'cat  many  objects,  which  cannot  be  enumerated 
here,  and  the  proceedings  taken  difier  in  different  classes 
of  cases.  But  in  all  legal  proceedings  the  object  is  to  bring 
all  the  parties  interested  before  the  court,  so  that  it  may 
learn  what  all  claim,  and  give  each  one  a  chance  to  dis- 
■^rove  misstatements  made  by  any  one  else. 


^ 


Reviem  Questions,  87 


REVIEW  QUESTIOIsrS. 


General  Prit^ciples  of  Goyeenment. 


Necessity  for  Society  and  Government. 

1.  Why  is  civil  society  necessary  to  mankind? 

2.  From  what  does  the  right  of  private  property  come? 

3.  What  is  law?     Why  necessary? 

4.  Why  is  government  necessary? 

Classijication  of  Bights  and  Law. 

5.  What  is  a  right? 

6.  What  are  political  rights?    In  what  act  does  a  man  exercise  them? 

7.  Name  the  different  classes  of  civil  rights. 

8.  To  what  class  do  religious  rights  belong? 

9.  What  is  the  difference  between  the  moral  law  and  the  law  of 

nature? 
10.  What  is  the  difference  between  the  moral  law  and  municipal 
law?    Which  is  the  broader?    Why? 


Forms  of  Oovernfnent. 


11.  Name  and  define  the  three  fundamental  forms  of  government. 

13.  What  is  a  despotism? 

13.  To  what  form  of  government  does  England  belong?  Is  it  abso- 
lute or  limited? 

14  Explain  the  difference  between  a  Republic  and  a  Pure  Demo« 
cracy. 

15.  To  which  form  does  the  United  States  Government  belong?  To 
which  do  the  State  Governments?    Why? 


88  Review  Questions, 


State  Goveenments. 


Constitution :  Election :  Departments. 

1.  What  is  a  constitution  in  this  country?    How  many  are  there 

here  now? 

2.  How  are  constitutions  framed?    By  whom,  and  how,  adopted? 

3.  Name  the  usual  qualifications  of  voters,  as  to  age,  sex,  residence, 

property,  character,  and  color. 

4.  Describe  the  manner  of  conducting  an  election. 

5.  What  is  registration? 

6.  What  is  the  difference  between  a  majority  and  a  plurality? 

Which,  usually,  is  necessary  to  elect  a  person? 

7.  How  many  departments  of  government  are  there?     Give  the 

name  and  duties  of  each.     Why  are  they  kept  distinct? 

Legislatim  Department. 

8.  Kame  the  two  branches  of  the  legislature.     Which  is  the  larger 

house?    Which  the  more  select? 

9.  Are  legislators  elected  or  appointed? 

10.  Ho w  often  do  legislatures  meet?     What  does  organization  consist 

of? 

11.  What  is  a  quorum?    How  many  usually  constitute  it  (i.e.  what 

proportion)  ? 

12.  Are  the  proceedings  of  legislatures  open  or  secret? 

13.  Describe  the  usual  method  of  enacting  laws. 

14.  What  are  the  purpose  and  use  of  committees? 

15.  What  is  a  veto?    Its  effect? 

16.  Is  a  law  valid  which  is  passed  with  all  the  formalities  which  the 

constitution  prescribes,  but  not  according  to  the  rules  of  the 
legislature? 

Executive  Department. 

17.  Who  is  the  chief  executive  officer  of  a  State?    How  does  he 

differ  from  a  king? 

18.  Name  his  principal  powers. 

19.  Name  the  other  high  executive  state  officers,  and  their  duties. 

20.  What  are  the  territorial  divisions  of  a  State?    Their  purpose? 

21.  Which  is  the  more  important  political  division  (county  or  town) 

in  the  Southern  States?    In  New  England? 

22.  What  is  a  municipal  corporation?     Give  some  examples. 

23.  Name  the  principal  county  officers,  and  their  duties. 

24.  Which  represent  the  county,  and  which  the  State? 

25.  Name  the  principal  town  officers,  and  their  duties. 

26.  Are  officers  of  the  executive  department  elected  or  appointed? 

27.  What  is  a  city?    A  village?    Why  are  they  incorporated ? 


Heview  Questions.  89 


28.  Are  inhabitants  of  cities  and  villages  subject  to  the  general  laws 

of  the  State? 

29.  In  what  particulars  do  municipal  corporations  differ  from  private? 

The  State  from  other  municipal  corporations? 

30.  What  is  a  tax?     Its  purpose? 

31.  Upon  what  kind  of  property  are  most  of  the  taxes  collected? 

32.  What  are  assessors? 

33.  How  is  a  tax  collected  when  the  party  will  not  pay  it,  in  case  he 

is  taxed  for  personal  property?    How,  in  case  he  is  taxed  for 
land? 
34  Explain  why  any  government  should  furnish  some  education  to 
its  citizens?     Why  should  we  in  this  country  especially? 

35.  How  are  common  schools  supported? 

36.  Name  some  public  institutions  supported  by  the  State. 

37.  How  does  a  railroad  or  canal  company  acquire  its  land? 

38.  Explain  the  difference  between  militia  and  a  standing  army. 

39.  Of  what  is  a  state  militia  composed  ?    Of  what  the  United  States 

militia? 

40.  Who  is  the  highest  officer  of  the  state  militia? 

41.  What  are  volunteer  regiments? 

Judicial  Department. 

42.  What  duties  does  the  judicial  department  perform? 

43.  What  is  impeachment?    What  body  tries  impeachments?    What 

judgment  may  it  render? 
44  What  i^  the  difference  between  a  civil  and  a  criminal  case?    Be- 
tween original  and  appellate  jurisdiction? 

45.  Name  the  thi-ee  grades  of  law  courts  in  a  State,  with  the  usual 

jurisdiction  of  each.     About  how  many  courts  are  there  in  each 
grade? 

46.  Wiiat  are  the  duties  of  probate  courts? 

47.  Describe  the  progress  of  an  ordinary  civil  case.     Describe  the 

course  of  a  trial. 

48.  In  what  civil  cases  may  a  defendant  be  arrested? 

49.  What  is  an  indictment?    A  grand  jury? 

50.  Describe  the  progress  of  an  ordinary  criminal  case. 

51.  Who  is  the  plaintiff  in  a  criminal  case? 


Dwisioisr  III.    • 

National  Goyeenment. 


SECTION  L 
Its  Omgin  and  Nature. 

CHAPTER    XXL 

60VEKNMENT  BEFOKE  THE  REVOLUTION". 

1.  The  TTnited  States  a  Nation. — Besides  the  state  gov- 
ernments that  we  have  described,  there  is  in  this  country 
another  government,  to  which  all  the  people  of  all  the 
States  are  subject,  and  which,  in  its  own  sphere,  has  para- 
mount authority  over  all  the  state  governments.  This  is 
the  United  States  Government.  The  people  of  all  the 
states  have,  as  a  Nation,  collectively  adopted  another 
constitution,  the  United  States  Constitution.  This  estab- 
lishes another  and  superior  government  for  all  the  people, 
which  is  therefore  called  the  National  Government.  In 
this  document  the  Nation  is  called  **The  United  States  of 
America."  To  assist  the  reader  in  understanding  the  Con- 
stitution and  government  of  the  United  States,  we  shall 
first  give  a  sketch  of  the  governments  which  preceded  the 
Revolution,  and  of  the  principal  causes  which  led  to  it. 

2.  The  Colonies. — Most  of  those  who  study  this  wort 
probably  know  that  our  present  state  and  national  govern- 
ments were  not  established  by  the  early  settlers  in  this 


Origin  and  Nature,  9t 

country.  The  first  inhabitants  (except  the  Indians)  were 
colonists.  A  colony  is  a  settlement  of  persons  in  a  distant 
place  or  country,  who  remain  subject  to  the  government  of 
the  country  from  which  they  came.  At  the  time  of  the 
Eevolution  there  existed  here  thirteen  Colonies,  settled 
mostly  from  Great  Britain,  all  subject  to  the  British  soyer- 
eign,  but  independent  of  each  other. 

3.  Colonial  Governments. — The  political  rights  and 
privileges  enjoyed  by  the  Colonists  as  British  subjects  were 
limited.  The  people  had  not  then,  as  now,  constitutions 
of  their  own  choice.  There  were  colonial  governments; 
but  they  were  such  as  the  king  was  pleased  to  establish, 
and,  generally,  might  be  changed  at  his  pleasure.  These 
governments  were  in  form  somewhat  similar  to  that  of  our 
state  governments.  There  was  what  might  be  called  a 
legislature;  also  an  executive  or  governor;  and  there  were 
judges.  But  of  the  officers  of  these  departments  of  the 
government,  only  the  members  of  the  lower  branch  of  the 
legislature  were  elected  by  the  people.  The  other  branch 
was  composed  of  a  small  number  of  men,  called  a  council; 
but  they  were  appointed  by  the  king  and  subject  to  his 
control,  as  was  also  the  governor,  who  had  the  power  of  an 
absolute  negative  or  veto  to  any  proposed  law.  And  laws, 
after  having  received  the  assent  of  the  governor,  had  to  be 
sent  to  England  and  approved  by  the  king  before  they 
could  go  into  effect.  The  judges  were  appointed  by  the 
governor.  The  Colonies  were  also  subject  to  the  laws  of 
the  English  Parliament. 

4.  Good  Laws  Denied. — Hence  we  see  that  the  Colonists 
had  no  security  for  the  passage  of  such  laws  as  they  wanted. 
And  the  consequence  was  that  they  were  often  denied  good 
laws. 

5.  Oppressive  Laws  of  Parliament. — Not  only  so;  many 
laws  enacted  by  Parliament  were  very  unjust  and  oppressive. 


92  Rational  Government 

The  object  of  these  laws  was  to  secure  to  Great  Britain 
alone  the  trade  of  the  Colonies.  One  law  declared  that  no 
goods  should  be  imported  by  the  Colonists  but  in  English 
vessels;  if  brought  in  other  vessels,  both  the  goods  and 
vessels  were  to  be  forfeited  to  the  British  Government. 
Another  law  declared  that  no  iron  wares  should  be  manu- 
factured by  the  Colonists,  so  as  to  compel  them  to  buy  of 
England.  So  also  the  Colonists  were  permitted  to  ship  to 
foreign  markets  such  products  only  as  English  merchants 
did  not  want.  They  were  prohibited  from  selling  abroad 
any  wool,  yarn,  or  woollen  manufactured  goods,  in  order  to 
keep  the  foreign  markets  open  for  British  wool  and  manu- 
factures. 

6.  Duties. — One  way  taken  to  compel  the  Colonies  to 
buy  of  England  alone  was  to  impose  heavy  duties  on  goods 
imported  from  anywhere  else.  For  instance:  The  Colonists 
traded  with  the  West  India  islands,  some  of  which  belonged 
to  Great  Britain,  some  to  France,  and  some  to  Spain.  To 
secure  the  whole  trade  to  the  British  islands,  the  British 
Government  imposed  high  duties  upon  the  molasses,  sugar, 
and  other  articles  imported  into  the  Colonies  from  the 
French  and  Spanish  islands.  The  people  of  the  Colonies 
were  therefore  obliged  to  import  the  above-mentioned  goods 
from  the  British  islands  only,  while,  if  there  had  been  no 
duty,  they  could  have  obtained  them  more  cheaply  from 
the  others. 

7.  Taxation  without  Representation. — Not  satisfied  with 
these  acts.  Parliament  claimed  the  right  to  tax  the  Colonies 
'*in  all  cases  whatsoever;"  and  an  act  was  passed  accord- 
ingly, laying  duties  upon  all  tea,  glass,  paper,  etc.,  im- 
ported into  the  Colonies;  and  the  money  thus  collected 
was  put  into  the  British  treasury.  The  Colonists  petitioned 
the  king  and  Parliament  to  repeal  these  obnoxious  laws, 
claiming  that  under  a  free  government  there  should  be  no 


Origin  and  Nature,  9S 

taxation  without  representation;  that  is,  that  no  legislative 
body  had  the  right  to  tax  them,  unless  th<n'  had  represen- 
ta^-iyes  of  their  oivn  in  that  body;  and  they  had  none 
in  Parliament.  These  petitions  were,  however,  disregarded. 
8.  Result. — The  Colonies  resisted  the  payment  of  these 
unjust  taxes.  Troops  were  then  sent  to  compel  submission, 
and  the  Colonists,  too,  began  to  arm.  Finally,  the  Con- 
gress, which  was  a  body  of  delegates  from  the  several 
Colonies,  giving  up  all  hope  of  relief,  declared  by  the 
Declaration  of  Independence,  on  July  4th,  1776,  the  Colo- 
nies to  be  free  and  independent  States,  no  longer  subject 
to  the  government  of  Great  Britain.  This  declaration  was 
maintained  by  a  war  which  lasted  about  seven  years,  v/hen 
Great  Britain  gave  up  the  contest  and  acknowledged  the 
independence  of  the  States ;  and  the  Revolution  was  ac- 
complished. By  this  declaration  the  thirteGTi  Colonies 
became  thirteen  States,  independent  not  only  of  Great 
Brit9.in,  but  also,  in  most  respects,  of  each,  ohter. 


CHAPTER  XXII. 

I 

THE    CONFEDERATION". 

1.  Continental  Congress.— As  early  as  the  year  1774,  the 
Colonies  united  in  the  plan  of  a  congress,  to  be  composed 
of  delegates  chosen  in  all  the  Colonies,  for  the  purpose  of 
consulting  on  the  common  good  and  of  adopting  measures 
of  resistance  to  the  claims  of  the  British  Government.  The 
Continental  Congress,  convened  in  May,  1T75,  conducted 


94  National  Government 

the  affairs  of  the  country  until  near  the  close  of  the  war. 
This  body  was  in  reality  a  revolutionary  body.  It  had 
nothing  to  define  or  limit  its  powers.  But  the  people 
relied  upon  the  honor,  wisdom,  and  patriotism  of  its  mem- 
bers, and  acquiesced  in  their  acts. 

2.  Confederation. — But  it  was  seen  from  the  first  that 
the  Colonies  (now  States,  by  the  Declaration  of  Independ- 
ence) ought  to  be  united,  and  that  a  central  government 
with  clearly  defined  powers  must  be  established.  With  a 
view  to  a  permanent  union  the  Congress,  in  November  1777, 
agreed  upon  a  frame  of  government,  contained  in  certain 
articles,  called  *^  Articles  of  Confederation  and  Perpetual 
Union  between  the  States."  These  articles  were  to  go  into 
effect  when  they  should  have  received  the  assent  of  all  the 
States.  But  as  the  consent  of  the  last  State  (Maryland) 
was  not  obtained  until  March,  1781,  they  went  into  opera- 
tion only  about  two  years  before  the  close  of  the  war. 

3.  Defective. — As  a  plan  of  national  government,  the 
Confederation  was  soon  found  to  be  very  defective.  The 
union  formed  under  it  was  a  very  imperfect  one.  Having 
been  framed  in  time  of  war,  it  had  respect  to  the  opera- 
tions of  war  rather  than  to  a  state  of  peace.  Its  defects 
appeared  almost  as  soon  as  it  went  into  effect;  and  after 
the  return  of  peace  it  was  found  that  the  union,  instead 
of  being  strengthened  and  perpetuated  by  it,  could  be  pre- 
served only  by  a  radical  change. 

4.  Weakness. — The  leading  defect  of  the  Confederation 
was  its  weakness.  It  consisted  merely  of  a  legislature, 
called  the  Congress^  and  had  no  executive  or  judicial 
departments.  This  body  could  do  little  more  than  recom- 
mend  measures.  As  it  could  not  legislate  directly  upon 
persons,  its  measures  were,  to  be  carried  into  effect  by  the 
States;  but  the  States  were  not  in  all  cases  willing,  and 
gome  of  them  did  at  times  refuse  to  do  so,  and  Congress 


'     Origin  and  Nature,  ^S 

could  not  compel  them.  It  belonged  to  Congress  to  deter- 
mine the  number  of  troops  and  the  sums  of  money  neces- 
sary to  carry  on  the  war,  and  to  call  on  each  State  to  raise 
its  share;  but  Congress  could  not  enforce  its  demands.  It 
borrowed  money  in  its  own  name,  but  it  had  no  means  of 
raising  money  to  pay  it.  Hence  we  see  that  Congress  was 
dependent  for  everything  upon  the  good-will  of  thirteen  in- 
dependent States.  It  is  a  wonder  that  a  government  of 
such  inherent  weakness  should  bring  the  war  to  a  success- 
ful issue.  It  was  a  sense  of  danger  from  abroad,  rather 
than  any  power  in  the  government,  that  induced  a  sufficient 
compliance  with  the  ordinances  of  Congress  to  achieve  the 
independence  of  the  States. 

5.  Taxes  and  Duties. — Congress  had  no.  power  to  levy 
taxes  or  to  impose  duties.  These  powers  were  reserved  to 
the  States,  Even  during  the  war  the  necessary  means  to 
carry  it  on  were  with  difficulty  collected  from  the  States. 
But  after  the  war  not  only  was  money  needed  for  the 
ordinary  expenses  of  the  government,  but  there  was  a  heavy 
debt  to  be  paid.  Duties  were  necessary  also  to  regulate 
foreign  trade,  but  each  State  imposed  such  as  it  saw  fit, 
and  there  was  no  uniformity.  Hence  American  commerce 
was  fast  being  destroyed  through  the  want  of  power  in  the 
central  government  to  regulate  it. 

6.  Discord  between  States. — Another  of  the  numerous 
troubles  which  arose  from  this  imperfect  union  was  the 
want  of  peace  and  harmony  between  the  States.  Laws 
were  enacted  in  some  States  with  a  view  to  their  own  in- 
terests, which  operated  injuriously  upon  other  States. 
This  induced  the  latter  to  retaliate,  by  passing  laws  partial 
to  themselves  and  injurious  to  the  former.  The  States 
soon  became  disaffected  toward  each  other;  and  their 
mutual  jealousies  and  rivalries  and  animosities  at  length 
became  so  great  as  to  cause  fears  that  some  of  the  States 


96  national  Government. 

would  become  involved  in  war  among  themselves,  and  that 
thus  the  union  would  be  broken  up. 

7.  Attempts  at  Amendment. — In  view  of  these  difficul- 
ties, attempts  were  made  to  change  the  Articles  of  Confed- 
eration so  as  to  give  the  Congress  more  power,  especially 
in  the  matter  of  regulating  trade;  but  the  attempts  failed. 

8.  Convention  of  1786. — In  January  1786  the  legisla- 
ture of  Virginia  proposed  a  convention  of  commissioners 
from  all  the  States,  to  take  into  consideration  the  situation 
and  trade  of  the  United  States  and  the  necessity  of  a 
uniform  system  of  commercial  regulations.  A  meeting 
was  accordingly  held  at  Annapolis  in  September  1786; 
but  as  commissioners  from  only  five  States*  attended,  the 
commissioners  deemed  it  unadvisable  to  proceed  to  business 
relating  to  an  object  in  which  all  the  States  were  concerned; 
but  they  united  in  a  report  to  the  several  States  and  to 
Congress,  in  which  they  recommended  the  calling  of  a 
general  convention  of  delegates  from  all  the  States,  to  meet 
in  Philadelphia  in  May  1787,  with  a  view  not  only  to  the 
regulation  of  commerce,  but  to  such  other  amendments  of 
the  Articles  of  Confederation  as  were  necessary  to  render 
them  "adequate  to  the  exigencies  of  the  union." 

9.  Convention  of  1787. — In  pursuance  of  this  recom- 
mendation, Congress,  in  February  1787,  passed  a  resolu- 
tion providing  for  a  convention.  All  the  States  except 
Rhode  Island  appointed  delegates,  who  met  pursuant  to 
appointment  and  framed  the  present  Constitution  of  the 
United  States.  They  also  recommended  it  to  be  laid  by 
Congress  before  the  several  States,  to  bo  by  them  consid- 
ered and  ratified  in  conventions  of  repi  esenfetives  of  the 
people. 

10.  Adoption  of  Constitution. — By  this  Constitution,  as 

*  IT^w  York,  I^ew  Jersey,  Pennsylvania,  Delaware,  and  Virginia 


Origin  and  Nature.  97 

soon  as  the  people  of  nine  States  ratified  it,  it  was  to  go 
into  effect  as  to  the  States  so  ratifying.  Conventions  of 
the  people  were  accordingly  held  in  all  the  States.  The 
ninth  State,  New  Hampshire,  sent  its  ratification  to  Con- 
gress in  July  1788;  and  measures  were  taken  by  Congress 
to  put  the  new  govern irent  into  operation.  North  Caro- 
lina and  Rhode  Island,  t  'le  last  States  to  accept  the  Con- 
stitution, did  not  send  their  ratifications  until  the  year 
after  the  government  was  jrganized. 


CHAPTER  XXm. 

THE  UNION  UNDER  THE  CONaTITUTTOlir, 

1.  Confederacy  and  Nation. — The  Confederation  and 
the  Union  under  the  Constitution  were  each  a  union  of 
the  States,  but  they  differed  vastly  from  each  other.  This 
difference  may  be  best  summed  up  by  saying  that  the  first 
make  a  Confederacy,  the  second  a  Nation.*  Under  the 
Confederation  the  States,  though  united  as  States  "in  a 
firm  league  of  friendship  with  each  other,"  yet  expressly 
"retained  each  its  sovereignty,  freedom  and  independence." 

*  A.  confederacy  is  a  league,  or  compact  between  iDdividuals  whether 
persons  or  nations:  a  nation,  as  distinguished  from  a  confederacy,  is 
a  people  indissolubly  bound  together  as  a  unit,  a  single  people.  One 
is  a  combination,  the  other  a  consolidation.  There  is  another  sense 
in  which  the  word  nation  is  often  used,  that  of  a  people,  or  combina- 
tion of  peoples,  having  a  common  central  authority,  w  hich  represents 
them  in  all  relations  with  foreign  nations.  The  States  were  never 
known  or  treated  by  foreign  powers  as  separate  nations,  nnd  therefore 
''r  this  sense  the  whole  people  were  one  nation  even  under  the  Con- 
lederation.  Further  than  this,  it  may  be  said  that  even  before  the 
Constitution  the  whole  people,  besides  being  bound  together  by  ties 
of  common  parentage  and  mutual  dependence,  often  acted  as  a 
consolidated  nation,  a  single  sovereignty  instead  of  thirteen. 


93  National  Gooemment 

The  people  were  citizens  of  the-several  States  rather  than 
of  a  consolidated  nation.  Under  the  Constitution  the 
States  are  no  longer  sovereign.  The  Nation  is  aboye  them, 
and  they  can  do  nothing  contrary  to  the  Constitution. 
They  have  in  many  respects  surrendered  their  sovereignty 
to  the  Nation  for  the  good  of  ill.  If  they  attempt  to 
withdraw,  the  Nation  can  coerce  them.*  The  people  of 
the  States  are  also  citizens  of  the  United  States.  We  will 
give  in  the  following  sections  the  chief  diiferences  between 
the  Confederation  and  the  present  Union,  which  taken 
together  make  one  a  Confederacy  and  the  other  a  Nation. 

2.  Name. — The  document  which  established  the  Con- 
federation professed  in  its  name  to  make  nothing  but  a 
league  between  the  States,  as  States,  calling  itself  * 'Articles 
of  Confederation  .  .  .  between  the  States."  The 
Constitution,  on  the  other  hand,  professes  to  make  a  union 
of  the  people,  and  not  of  the  States:  thus  its  preamble 
reads,  "  We,  the  People  of  the  United  States  ...  do 
ordain  and  establish  this  Constitution." 

3.  By  Whom  Adopted. — The  Articles  of  Confederation 
were  adopted  by  the  state  legislatures,  acting  for  the  States, 
as  States;  the  Constitution  was  adopted  by  conventions 
elected  by  the  people  in  the  several  States.  By  whom  they 
were  framed  is  of  little  import. 

4.  Power. — But  the  chief  difference  between  the  two 
was  in  their  power.  We  have  seen  that  the  Confederation 
had  no  power  except  to  pass  laws,  and  States  and  individ- 
uals could  disobey  them  without  fear  of  punishment,  for 

*  At  the  time  of  the  late  Civil  War  the  Southern  States  claimed 
that  the  Nation  was  but  a  Confederation,  and  that  therefore  they 
could  witlidraw.  Tliis  they  attempted  to  do,  and  set  up  a  govern- 
ment of  their  own,  calling  it  tlie  "  Confederate  States  of  America." 
But — if  force  of  arms  can  ever  settle  a  logical  question — it  is  now 
settled  that  our  counti-y  is  not  a  mere  confederation,  but  a  Nation. 


Origin  and  Nature,  99 

it  had  no  executive  department  to  enforce,  and  no  judicial 
department  to  judge  of,  its  laws.  But  the  Constitution 
giyes  the  National  Government  all  necessary  powers  to  en- 
force obedience  to  its  laws;  a  complete  executive  depart- 
ment, with  armies  and  money  (or  the  power  to  raise  them) 
at  its  command  ;  and  also  a  judicial  department  free  from 
state  control. 

5.  State  Equality. — Again,  under  the  Confederation,  as 
in  confederacies  generally,  the  States  were  equal.  They 
were  entitled  to  an  equal  number  of  delegates  in  the  Con- 
gress, in  which  they  voted  by  States,  each  State  having  one 
vote;  that  is,  if  a  majority  of  the  delegates  of  a  State 
voted  in  favor  of  or  against  a  proposed  measure,  the  vote 
of  the  State  was  so  counted;  and  a  proposition  having  in 
its  favor  a  majority  of  the  States  was  carried.  Under  the 
Constitution  both  branches  of  the  legislature  vote^er  capita, 
the  vote  of  each  member  counting  one,  and  in  the  lower 
branch  the  representation  is  according  to  population,  and 
thus  the  larger  States  have  more  members.  The  President, 
too,  is  elected,  not  by  States,  but  by  a  majority  vote  of  the 
Electors.     (See  pages  126,  162.) 

6.  National  Government. — The  government  of  the  Con- 
federation, although  sometimes  called  the  National  Govern- 
ment, was  not  really  such,  nor  was  it  generally  so  regarded, 
as  appears  from  the  proceedings  of  the  Convention  that 
framed  the  Constitution.  Early  in  the  session  of  the  Con- 
vention a  resolution  was  offered,  declaring  '^That  a 
National  Government  ought  to  be  established,  consisting  of 
a  supreme  legislative,  judiciary^  and  executive."  This  reso- 
lution was  strongly  opposed  by  a  large  portion  of  the  dele- 
gates, because  it  proposed  to  establish  a  national  govern- 
ment. They  were  in  favor  of  continuing  the  Confederation 
with  a  slight  enlargement  of  the  powers  of  Congress^  so  as 
to  give  that  body  the  jiowsr  to  lay  and  collect  taxes  and 


100  National  Government 

to  regulate  commercec  But  the  friends  of  a  national 
government  prevailed;  and  history  has  proved  their  wis- 
dom. 

7.  Federal  Union. — But  although  the  present  govern- 
ment, with  its  three  departments,  its  powers,  and  its 
supremacy  over  the  States,  is  properly  a  national  govern- 
ment, yet  it  is  not  wholly  such,  but  partly  national  and 
partly  federal;  some  of  the  federal  features  of  the  Confed- 
eration having  been  retained  in  the  Constitution,  as  will 
appear  on  a  further  examination  of  this  instrument.  Hence 
the  Union  is  still  called,  with  propriety,  the  Federal  Union, 
and  the  government  the  Federal  Qovernment, 


CHAPTER  XXIV. 

CONSTITUTION^  OF  THE   UNITED   STATES. 


[Note.— The  following  Is  the  text  of  the  Constitution  and  Amendments.  It 
should  be  studied  until  the  pupil  can  give  the  subject  and  substance  of  each 
paragraph.  The  titles  of  the  articles  and  sections  form  no  part  of  the  document, 
but  are  added  here  for  the  purpose  of  convenience  in  reference.  The  large 
numbers  at  the  left  are  placed  there  that  the  paragraphs  may  be  referred  to 
by  number  in  the  rest  of  the  book.] 

Preamble. 

We,  the  People  of  the  United  States,  in  order  to  form  a 
more  perfect  union,  establish  justice,  insure  domestic  tran- 
quillity, provide  for  the  common  defence,  promote  the 
general  welfare,  and  secure  the  blessings  of  liberty  to  our- 
selves and  our  posterity,  do  ordain  and  establish  this 
Constitution  for  the  United  States  of  America. 


Origin  and  Nature.  101 


2 


5 


ARTICLE  I. 

Legislative  Department. 
Section  1. — Division  into  Two  Houses. 

1.  All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  consist  of  a 
Senate  and  House  of  Representatives. 

Section  2. — House  of  Representatives. 

1.  The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of  the 
several  States;  and  the  electors  in  each  State  shall  have 
the  qualifications  requisite  for  electors  of  the  most  numer- 
ous branch  of  the  State  Legislature. 

2.  No  person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  age  of  twenty -five  years,  and  been  seven 
years  a  citizen  of  the  United  States,  and  who  shall  not, 
when  elected,  be  an  inhabitant  of  that  State  in  which  he 
shall  be  chosen. 

3.  Representatives  and  direct  taxes  shall  be  apportioned 
among  the  several  States  which  may  be  included  within 
this  Union,  according  to  their  respective  numbers,  which 
shall  be  determined  by  adding  to  the  whole  number  of  free 
persons,  including  those  bound  to  service  for  a  term  ol 
years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  persons.  The  actual  enumeration  shall  be  made 
within  three  years  after  the  first  meeting  of  tlie  Congress  of 
the  United  States,  and  within  every  subsequent  term  of  ten 
years,  in  such  manner  as  they  shall  by  law  direct.  The 
number  of  Representatives  shall  not  exceed  one  for  every 
thirty  thousand,  but  each  State  shall  have  at  least  one 
Representative ;  and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose  three; 
Massachusetts,  eight;  Rhode  Island  and  Providence  Plan- 
tations, one ;  Connecticut,  jiw ;  New  York,  dx ;  New 
Jersey,  four;  Pennsylvania,  eight;  Delaw«re.  one:  Mary 


102 


National  Oovernment. 


6 

7 


8 
9 


10 

11 
IQ 

13 


land,  six;  Virginia,  ten;  North  Carolina,  five;  South  Caro- 
lina, five;  and  Georgia,  three. 

4.  When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue  writs 
of  election  to  fill  such  vacancies. 

5.  The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole  power  of 
impeachment. 


Section  3.— Senate. 

1.  The  Senate  of  the  United  States  shall  be  composed  of 
two  Senators  from  each  State,  chosen  by  the  Legislature 
thereof,  for  six  years;  and  each  Senator  shall  have  one  vote. 

2.  Immediately  after  they  shall  be  assembled  in  conse- 
quence of  the  first  election,  they  sliall  be  divided,  as  equally 
as  may  be,  into  three  classes.  The  seats  of  the  Senators  of 
the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year;  of  the  second  class  at  the  expiration  of  the 
fourth  year;  and  of  the  third  class  at  the  expiration  of  the 
sixth  year;  so  that  one  third  may  be  chosen  every  second 
year;  and  if  vacancies  happen,  by  resignation  or  otherwise, 
during  the  recess  of  the  Legislature  of  any  State,  the  Ex- 
ecutive thereof  may  make  temporary  appointments,  until 
the  next  meeting  of  the  Legislature,  which  shall  then  fill 
such  vacancies. 

3.  No  person  shall  be  a  Senator  who  shall  not  have  at- 
tained to  the  age  of  thirty  years,  and  been  nine  years  a 
citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  for  which  he  shall  be  chosen. 

4.  The  Vice-President  of  the  United  States  shall  be  Presi- 
dent of  the  Senate,  but  shall  have  no  vote,  unless  they  be 
equally  divided. 

5.  The  Senate  shall  choose  their  other  officers,  and  also  a 
President  pro  tempore,  in  the  absence  of  the  Vice-President, 
or  when  he  shall  exercise  the  office  of  President  of  the 
United  States.  * 

6.  The  Senate  shall  have  the  sole  power  to  try  all  im- 
peachments: when  sitting  for  that  purpose,  they  shall  be 
on  oath  or  affirmation.     When  the  President  of  the  United 


Origin  and  Nature.  103 


14 


15 


16 


States  is  tried,  the  Chief- Justice  shall  preside;  and  no  person 
shall  he  convicted  without  the  concurrence  of  two-thirds 
of  the  memhers  present. 

7.  Judgment,  in  cases  of  impeachment,  shall  not  extend 
further  than  to  removal  from  office,  and  disqualification  to 
hold  and  enjoy  any  office  of  honor,  trust,  or  profit,  under 
the  United  States;  but  the  party  convicted  shall,  neverthe- 
less, be  liable  and  subject  to  indictment,  trial,  judgment 
and  punishment,  according  to  law. 

Section  4. — Elections  and  Meetings  of  Congress. 

1.  The  times,  places,  and  manner  of  holding  elections  for 
Senators  and  Representatives  shall  be  prescribed  in  each 
State  by  the  Legislature  thereof ;  but  the  Congress  may  at 
any  time,  by  law,  make  or  alter  such  regulations,  except 
as  to  the  places  of  choosing  Senators. 

2.  The  Congress  shall  assemble  at  least  once  in  every 
year;  and  such  meeting  shall  be  on  the  first  Monday  in 
December,  unless  they  shall,  by  law,  appoint  a  different  day. 

Section  5. — Powers  and  Duties  of  the  Houses. 


1.  Each  House  shall  be  the  judge  of  the  elections,  returns, 
1  I     and  qualifications  of  its  own  members;  and  a  majority  of 

each  shall  constitute  a  quorum  to  do  business;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  author- 
ized to  compel  the  attendance  of  absent  members,  in  such 
manner,  and  under  such  penalties,  as  each  House  may  pro- 
vide. 

2.  Each  House  may  determine  the  rules  of  its  proceed- 
IQ    ings,  punish  its  members  for  disorderly  behavior,  and,  with 

the  concurrence  of  two-thirds,  expel  a  member. 

3.  Each  House  shall  keep  a  journal  of  its  proceedings, 

19  and  from  time  to  time  publish  the  same,  excepting  such 
parts  as  may,  in  their  judgment,  require  secrecy;  and  the 
yeas  and  nays  of  the  members  of  either  House,  on  any 
question,  shall,  at  the  desire  of  one-fifth  of  those  present, 
be  entered  on  the  journal. 

4.  Neither  House,  during  the  session  of  Congress,  shall, 

20  I  without  the  consent  of  the  other,   adjourn  for  more  than 


104 


National  Government. 


21 


33 


33 


34 


three  days,  nor  to  any  other  place  than  that  in  which  the 
two  Houses  shall  he  sitting. 

Section  6.— Privileges  of  and  Prohibitions  upon 
Members. 

1.  The  Senators  and  Representatives  shall  receive  a  com- 
pensation for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  treasury  of  the  United  States,  They  shall, 
in  all  cases  except  treason,  felony,  and  breach  of  the  peace, 
be  privileged  from  arrest  during  their  attendance  at  the 
session  of  their  respective  Houses,  and  m  going  to  and 
returning  from  the  same ;  and  for  any  speech  or  debate  in 
either  House,  they  shall  not  be  questioned  in  any  other 
place. 

2.  No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil  office 
under  the  authority  of  the  United  States,  which  shall 
have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased,  during  such  time;  and  no  person  holding 
any  office  under  the  United  States  shall  be  a  member  of 
either  House  during  his  continuance  in  office. 

SECTION  7.— Revenue  Bills :  President's  Veto. 

1.  All  bills  for  raising  revenue  shall  originate  in  the  House 
of  Representatives;  but  the  Senate  may  propose,  or  concur 
with,  amendments,  as  on  other  bills. 

2.  Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate  shall,  before  it  become  a 
law,  be  presented  to  the  President  of  the  United  States; 
if  he  approve,  he  shall  sign  it ;  but  if  not,  he  shall  return 
it,  with  his  objections,  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  objections  at  large 
on  their  journal,  and  proceed  to  reconsider  it.  If,  after  such 
reconsideration,  two-thirds  of  that  House  shall  agree  to  pass 
the  bill,  it  shall  be  sent,  together  with  the  objections,  to  the 
other  House,  by  which  it  shall  likewise  be  reconsidered, 
and,  if  approved  by  two-thirds  of  that  House,  it  shall 
become  a  law  But,  in  all  such  cases,  the  votes  of  both 
Houses  shall  be  determined  by  yeas  and  nays,  and  the 


35 


26 

27 
28 
29 

30 
31 

32 
33 

34 
35 


Origin  and  Natwre,  lOo 

names  of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  House  respectively.  If 
any  bill  shall  not  be  returned  by  the  President  within  ten 
days  (Sundays  excepted)  after  it  shall  have  been  presented 
to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Congress,  by  their  adjournment,  pre- 
vent its  return,  in  which  case  it  shall  not  be  a  law. 

3.  Every  order,  resolution,  or  vote  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives  may 
be  necessary  (except  on  a  question  of  adjournment),  shall 
be  presented  to  the  President  of  the  United  States,  and 
before  the  same  shall  take  effect  shall  be  approved  by  him, 
or,  being  disapproved  by  him,  shall  be  repassed  by  two- 
thirds  of  the  Senate  and  House  of  Representatives,  accord- 
ing to  the  rules  and  limitations  prescribed  in  the  case  of  a 
bill. 

Section  8. —Legislative  Powers  of  Congress. 

TLe  Congress  shall  have  power: 

1.  To  lay  and  collect  taxes,  duties,  imposts,  and  excises 
to  pay  the  debts  and  provide  for  the  common  defence  and 
general  welfare  of  the  United  States;  but  all  duties,  imposts, 
and  excises  shall  be  uniform  throughout  the  United  States: 

2.  To  borrow  money  on  the  credit  of  the  United  States: 

3.  To  regulate  commerce  with  foreign  nations,  and 
among  the  several  States,  and  with  the  Indian  tribes: 

4.  To  establish  a  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States: 

5.  To  coin  money;  to  regulate  the  value  thereof,  and  of 
foreign  coin ;  and  fix  the  standard  of  weights  and  measures. 

6.  To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States: 

7.  To  establish  post-offices  and  post-roads: 

8.  To  promote  the  progress  of  science  and  useful  arts,  by 
securing  for  limited  times,  to  authors  and  inventors,  the 
exclusive  right  to  their  respective  writings  and  discoveries: 

9.  To  constitute  tribunals  inferior  to  the  Supreme  Court. 

10.  To  define  and  punish  piracies  and  felonies  committed 
on  the  high  seas,  and  offences  against  the  law  of  nations: 


106 


Natkmal  Oovernment. 


36 
37 
38 
39 
40 

41 


42 


43 


44 


45 


11.  To  declare  war;  grant  letters  of  marque  and  reprisal; 
and  make  rules  concerning  captures  on  land  and  water: 

12.  To  raise  and  support  armies;  but  no  appropriation 
of  money  to  tliat  use  shall  be  for  a  longer  term  than  two 
years : 

13.  To  provide  and  maintain  a  navy: 

14.  To  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces: 

15.  To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and  repel 
invasions: 

16.  To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may  be 
employed  in  the  service  of  the  United  States ;  reserving  to 
the  States  respectively  the  appointment  of  the  officers,  and 
the  authority  of  training  the  militia  according  to  the  dis- 
cipline prescribed  by  Congress: 

17.  To  exercise  exclusive  legislation  in  all  cases  whatso- 
ever over  such  district  (not  exceeding  ten  miles  square)  as 
may,  by  cession  of  particular  States  and  the  acceptance  of 
Congress,  become  the  seat  of  the  government  of  the  United 
States,  and  to  exercise  like  authority  over  all  places  pur- 
chased by  the  consent  of  the  Legislature  of  the  State  in 
which  the  same  shall  be,  for  the  erection  of  forts,  magazines, 
arsenals,  dock-yards,  and  other  needful  buildings:  And 

18.  To  make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  the  foregoing  powers,  and  all 
other  powers  vested  by  this  Constitution  in  the  government 
of  the  United  States,  or  in  any  department  or  officer  thereof. 

Section  9. — Prohibitions  upon  the  United  States. 

1.  The  migration  or  importation  of  such  persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year 
one  thousand  eight  hundred  and  eight;  but  a  tax  or  duty 
may  be  imposed  on  such  importation,  not  exceeding  ten 
dollars  for  each  person. 

2.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be 
suspended  unless  when,  in  cases  of  rebellion  or  invasion, 
the  public  safety  may  require  it. 


Origin  and  Nature. 


107 


46 

47 

48 


49 
50 


51 


52 


8.  No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed. 

4.  No  capitation  or  other  direct  tax  shall  be  laid,  unless 
in  proportion  to  the  census  or  enumeration  hereinbefore 
directed  to  be  taken. 

5.  No  tax  or  duty  shall  be  laid  on  articles  exported  from 
any  State.  No  preference  shall  be  given,  by  any  regulation 
of  commerce  or  revenue,  to  the  ports  of  one  State  over 
those  of  another;  nor  shall  vessels  bound  to  or  from  one 
State  be  obliged  to  enter,  clear,  or  pay  duties  in  another. 

6.  No  money  shall  be  drawn  from  the  treasury,  but  in 
consequence  of  appropriations  made  by  law;  and  a  regular 
statement  and  account  of  the  receipts  and  expenditures  of 
all  public  money  shall  be  published  from  time  to  time. 

7.  No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or  trust 
under  them  shall,  without  the  consent  of  the  Congress,  ac- 
cept of  any  present,  emolument,  office,  or  title  of  any  kind 
whatever,  from  any  king,  prince,  or  foreign  State. 

Section  10. — Prohibitions  upon  the  States. 

1.  No  State  shall  enter  into  any  treaty,  alliance,  or  con- 
federation; grant  letters  of  marque  and  reprisal;  coin 
money;  emit  bills  of  credit;  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts ;  pass  any  bill  of 
attainder,  ex  post  facto  law,  or  law  impairing  the  obligation 
of  contracts;  or  grant  any  title  of  nobility. 

2.  No  State  shall,  without  the  consent  of  the  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its  inspec- 
tion laws;  and  the  net  produce  of  all  duties  and  imposts 
laid  by  any  State  on  imports  or  exports,  shall  be  for  the  use 
of  the  treasury  of  the  United  States;  and  all  such  laws 
shall  be  subject  to  the  revision  and  control  of  the  Congress. 
No  State  shall,  without  the  consent  of  Congress,  lay  any 
duty  of  tonnage,  keep  troops  or  ships  of  war  in  time  of 
peace,  enter  into  any  agreement  or  compact  with  another 
State,  or  with  a  foreign  power,  or  engage  in  war  unless 
actually  invaded,  or  in  such  imminent  danger  as  will  not 
admit  of  delay. 


108 


National  GovernmenL 


53 
54 


55 


ARTICLE  11. 

Executive  Department:  The  Presidei^t  and 

Vice-President. 

Section  1. — Term:  Election:  Qualifications:  Salary: 
Oath  of  Office. 

1.  The  executive  power  shall  he  vested  in  a  President  of 
the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  and,  together  with  the  Vice- 
President,  chosen  for  the  same  term,  be  elected  as  follows: 

2.  Each  State  shall  appoint,  in  such  manner  as  the  Legis- 
lature thereof  may  direct,  a  number  of  Electors  equal  to  the 
whole  number  of  Senators  and  Representatives  to  which 
the  State  may  be  entitled  in  the  Congress;  but  no  Senator  or 
Representative,  or  person  holding  an  office  of  trust  or  profit 
under -^tlie  United  Stat  "s,  shall  be  appointed  an  Elector. 

The  following  clause  lias  been  superseded  by  Article  XII.  of  the 
Amendments: 

3.  The  Electors  shall  meet  in  their  respective  States,  and  vote  by 
ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an  inhabh 
tant  of  the  same  State  with  themselves.  And  they  shall  make  a  lisJ 
of  all  the  persons  voted  for,  and  of  the  number  of  votes  for  each, 
which  list  they  shall  sign  and  certify,  and  transmit,  sealed,  to  the 
seat  of  the  government  of  the  United  States,  directed  to  the  Presi- 
dent of  the  Senate.  The  President  of  the  Senate  shall,  in  the  pre- 
sence of  the  Senate  and  House  of  Representatives,  open  all  the 
certificates,  and  the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed,  and  if 
there  be  more  than  one  who  have  such  majority,  and  have  an 
equal  number  of  votes,  then  the  House  of  Representatives  shall 
immediately  choose  by  ballot  one  of  them  for  President ;  and  if  no 
person  have  a  majority,  then,  from  the  five  highest  on  the  list,  the 
said  House  shall,  in  like  manner,  choose  the  President.  But  in 
choosing  the  President,  the  votes  shall  be  taken  by  States,  the 
representation  from  each  State  having  one  vote;  a  quorum  for  thia 
purpose  shall  consist  of  a  member  or  members  from  two-thirds  of 
the  States,  and  a  majority  of  the  States  shall  be  necessary  to  a 
choice.  In  every  case,  after  the  choice  of  the  President,  the  person 
having  the  greatest  number  of  votes  of  the  Electors  shall  be  the 
Vice-President.  But  if  there  should  remain  two  or  more  who  have 
equal  votes,  the  Senate  sh  11  choose  from  them,  by  ballot,  the  Vicer 
President. 


58 


Origin  and  Nature,  109 

4.  The  Congress  may  determine  the  time  of  choosing  the 
P\C\    Electors,   and  tlie   day  on   which   they   sliall  give   their 

votes,  whicli  day  shall  be  the  same  throughout  the  United 
States. 

5.  No  person  except  a  natural  born  citizen,  or  a  citizen 
gfy  of  the  United  States  at  the  time  of  the  adoption  of  this  Con- 
stitution, shall  be  eligible  to  the  office  of  President;  neither 
shall  any  person  be  eligible  to  that  oflice  who  shall  not 
have  attained  to  the  age  of  thirty-five  years,  and  been 
fourteen  years  a  resident  within  the  United  States. 

6.  In  case  of  the  removal  of  the  President  from  office,  or 
of  his  death,  resignation,  or  inability  to  discharge  the 
powers  and  duties  of  the  said  office,  the  same  shall  devolve 
on  the  Vice  President,  and  the  Congress  may,  by  law,  pro- 
vide for  the  case  of  removal,  death,  resignation,  or  inability, 
both  of  the  President  and  Vice  President,  declaring  what 
officer  shall  then  act  as  President;  and  sjch  officer  shall 
act  accordingly,  until  the  disability  be  removed,  or  a  Presi- 
dent shall  be  elected. 

7.  The  President  siiall,  at  stated  times,  receive  for  his 
PC  O    services  a  compensation,  w^hicli  shall  neither  be  increased 

nor  diminished  during  the  period  for  Avhich  he  shall  have 
been  elected;  and  he  shall  not  receive,  within  that  period, 
any  other  emolument  from  the  United  States,  or  any  of 
them. 

8.  Before  he  enter  on  the  execution  of  his  office,  he  shall 
gQ    take  the  following  oath  or  affirmation: 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States;  and 
will,  to  the  best  of  my  ability,  preserve,  protect,  and  defend 
the  Constitution  of  the  United  States." 


61 


Section  2. — President's  Executive  Powers. 

1.  The  President  shall  be  commander  in  chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of 
the  several  States  when  called  into  the  actual  service  of 
the  United  States;  he  may  require  the  opinion,  in  writing, 
of  the  principal  officer  in  each  of  the  executive  Departments, 
upon  any  subject  relating  to  the  duties  of  their  respective 
offices;   and  he  shall  have  power  to  grant  reprieves  and 


110 


National  Ooternment. 


63 


63 


64 


65 


pardons  for  offences  against  the  United  States,  except  in 
cases  of  impeachment. 

2.  He  shall  have  power  by  and  with  the  advice  and  con- 
sent of  the  Senate  to  make  treaties,  provided  two-thirds  of 
the  Senators  present  concur;  and  he  shall  nominate,  and  by 
and  with  the  advice  and  consent  of  the  Senate  shall  ap- 
point, ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other  oflScers  of  the 
United  States  whose  appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  law :  but 
the  Congress  may,  by  law,  vest  the  appointment  of  such 
inferior  officers  as  they  think  proper,  in  the  President  alone, 
in  the  courts  of  law,  or  in  the  Heads  of  Departments. 

3.  The  President  shall  have  power  to  till  up  all  vacancies 
that  may  happen  during  the  recess  of  the  Senate,  by  grant- 
ing commissions  which  shall  e;xpire  at  the  end  of  their  next 
session. 

Section  3. — President's   Executive   Powers 
(continued). 

1.  He  shall  from  time  to  time  give  to  the  Congress  infor^ 
mation  of  the  state  of  the  Union ;  and  recommend  to  thei^ 
consideration  such  measures  as  he  shall  judge  necessary 
and  expedient.  He  may,  on  extraordinary  occasions,  con' 
vene  both  Houses,  or  either  of  them ;  and  in  case  of  dis- 
agreement between  them,  with  respect  to  the  time  of  ad- 
journment, he  may  adjourn  them  to  such  time  as  he  shall 
think  proper.  He  shall  receive  ambassadors  and  other 
public  ministers.  He  shall  take  care  that  the  laws  be  faith- 
fully executed;  and  shall  commission  all  the  officers  of  the 
United  States. 

Section  4. — Impeachment. 

1.  The  President,  Vice-President,  and  all  civil  officers  of 
the  United  States  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 


Origin  and  Nature,  111 


66 


67 


68 


69 


ARTICLE  III. 
Judicial  Department. 

Section  1. — Courts :  Terms  of  Office. 

1.  The  judicial  power  of  the  United  States  shall  be  vested 
in  one  Supreme  Court,  and  in  such  inferior  Courts  as  the 
Congress  may,  from  time  to  time,  ordain  and  establish. 
The  judges  both  of  the  Supreme  and  inferior  Courts  shal 
hold  their  offices  during  good  behavior ;  and  shall,  at  stated 
times,  receive  for  their  services  a  compensation  which 
shall  not  be  diminished  during  their  continuance  in  office. 

Section  2.— Jurisdiction. 

1.  The  judicial  power  shall  extend  to  all  cases  in  law 
and  equity  arising  under  this  Constitution,  the  laws  of  the 
United  States  and  treaties  made,  or  which  shall  be  made, 
under  their  authority ;  to  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls;  to  all  cases  of  admi- 
ralty and  maritime  jurisdiction;  to  controversies  to  which 
the  United  States  shall  be  a  party,  to  controversies  between 
two  or  more  States ;  between  a  State  and  citizens  of  another 
State;  between  citizens  of  different  States;  between  citizens 
of  the  same  State  claiming  lands  under  grants  of  different 
States;  and  between  a  State,  or  the  citizens  thereof,  and 
foreign  States,  citizens,  or  subjects. 

2.  In  all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  State  shall  be  a  party, 
the  Supreme  Court  shall  have  original  jurisdiction.  In  all 
the  other  cases  before  mentioned,  the  Supreme  Court  shall 
have  appellate  jurisdiction,  both  as  to  law  and  fact,  with 
such  exceptions,  and  under  such  regulations,  as  the  Con- 
gress shall  make. 

3.  The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in  the 
State  where  the  said  crimes  shall  have  been  committed ;  but 
when  not  committed  within  any  State,  the  trial  shall  be  at 


112 


National  Government. 


T-O 


71 


72 


73 

74 


75 


such  place  or  places  as  the  Congress  may  by  law  have 
directed. 

Section  3.— Treason. 

1.  Treason  against  the  United  States  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason,  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court. 

2.  The  Congress  shall  have  power  to  declare  the  punish- 
ment of  treason ;  but  no  attainder  of  treason  shall  work 
corruption  of  blood,  or  forfeiture,  except  during  the  life  of 
the  person  attainted. 


ARTICLE  ly. 

Eelatio:n^s  of  States. 

Section  1.— Public  Records. 

1.  Full  faith  and  credit  shall  be  given,  in  each  State,  to 
the  public  acts,  records,  and  judicial  proceedings  of  every 
other  State.  And  the  Congress  may,  by  general  laws,  pre- 
scribe the  manner  in  which  such  acts,  records,  and  proceed- 
ings shall  be  proved,  and  the  effect  thereof. 

Section  2. — Eights  in  one  State  of  Citizens  of 
another. 

1.  The  citizens  of  each  State  shall  be  entitled  to  all  the 
privileges  and  immunities  of  citizens  in  the  several  States, 

2.  A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice  and  be  found  in 
another  State,  shall,  on  demand  of  the  executive  authority 
of  the  State  from  which  he  fled,  be  delivered  up,  to  be  re- 
moved to  the  State  having  jurisdiction  of  the  crime. 

3.  No  person  held  to  service  or  labor  in  one  State,  under 
the  laws  thereof,  escaping  into  another,  shall,  in  conse- 
quence of  any  law  or  regulation  therein,  be  discharged 
from  such  service  or  labor;  but  shall  be  delivered  up  on 
claim  of  the  party  to  whom  such  service  or  labor  may  be  due. 


Origin  and  Nature.  113 


76 


77 


78 


79 


Section  3. — New  States:  Territories. 

1.  Kew  States  may  be  admitted  by  the  Congress  into  this 
Union;  but  no  new  State  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State,  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States,  or  parts  of  States, 
without  the  consent  of  the  Legislatures  of  the  States  con- 
cerned, as  well  as  of  the  Congress. 

2.  The  Congress  shall  have  power  to  dispose  of,  and  make 
all  needful  rules  and  regulations  respecting,  the  territory  or 
other  property  belonging  to  the  United  States;  and  nothing 
in  this  Constitution  shall  be  so  construed  as  to  prejudice 
any  claims  of  the  United  States,  or  of  any  particular  State. 

Section  4. — Protection  afforded  to  States  by  the 
Nation. 

1.  The  United  States  shall  guarantee  to  every  State  in  this 
Union  a  republican  form  of  government;  and  shall  protect 
each  of  them  against  invasion,  and  on  application  of  the 
Legislature,  or  of  the  Executive  (when  the  Legislature  can- 
not be  convened)  against  domestic  violence. 


AKTICLE  V. 

Amekdment. 

The  Congress,  whenever  tw^o-thirds  of  both  Houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Con- 
stitution, or,  on  the  application  of  the  Legislatures  of  two- 
thirds  of  the  several  States,  shall  call  a  convention  for  pro- 
posing amendments;  wiiich,  in  either  case,  shall  be  valid 
to  all  intents  and  purposes,  as  part  of  this  Constitution, 
when  ratified  by  the  Legislatures  of  three-fourths  of  the 
several  States,  or  by  conventions  in  three-fourths  thereof, 
as  the  one  or  the  other  mode  of  ratification  may  be  proposed 
by  the  Congress,  provided,  that  no  amendment  which  may 
be  made  prior  to  the  year  one  thousand  eight  hundred  and 
eight  shall  in  any  mauner  affect  the  first  and  fourth  clauses 


114 


National  Ootsenvment. 


80 


81 


83 


83 


in  the  ninth  section  of  the  first  article ;  and  that  no  State 
without  its  consent,  shall  be  deprived  of  its  equal  suffrage 
in  the  Senate. 


AETICLE  VI. 

Natiojs-al  Debts:  Supremacy  of  Natiokal 
Law:  Oath. 

1.  All  debts  contracted,  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution  shall  be  as  valid 
against  the  United  States  under  this  Constitution  as  under 
the  Confederation. 

2.  This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all  treaties 
made  or  which  shall  be  made  under  the  authority  of  the 
United  States,  shall  be  the  supreme  law  of  the  land,  and  the 
judges  in  every  State  shall  be  bound  thereby,  anything  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. 

3.  The  Senators  and  Eepresentatives  before  mentioned, 
and  the  members  of  the  several  Legislatures,  and  all  execu- 
tive and  judicial  officers,  both  of  the  United  States  and  of 
the  several  States,  shall  be  bound,  ])y  oath  or  affirmation,  to 
support  this  Constitution;  but  no  religious  test  shall  ever 
be  required  as  a  qualification  to  any  office  or  public  trust 
under  the  United  States. 


ARTICLE  VIL 
Establishmekt  of  Constitution. 

The  ratification  of  the  conventions  of  nine  States  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 

[Constitution  ratified  by  States,  1787  1790.] 


Origin  and  Nature.  115 


84 


85 


86 


87 


AMENDMENTS. 


AKTICLE  I. 

Freedom  of  Keligion,  of  Speech,  and  of  the 
Press:  Eight  of  Petition". 

Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or 
abridging  the  freedom  of  speech  or  of  the  press;  or  the 
right  of  the  people  peaceably  to  assemble,  and  to  petition 
the  government  for  a  redress  of  grievances. 

[Adopted  1791.] 

ARTICLE  XL 
Right  to  Keep  Arms. 

A  well-regulated  militia  being  necessary  to  the  security 

of  a  free  State,  the  right  of  the  people  to  keep  and  bear 

arms  shall  not  be  infringed. 

[Adopted  1791.] 

ARTICLE  III. 
Quartering  of  Soldiers  in  Private  Houses. 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any 
house  without  the  consent  of  the  owner;  nor  in  a  time  of 
war,  but  in  a  manner  to  be  prescribed  by  law. 

[Adopted  1791.] 

ARTICLE  IV. 

Search  Warrants. 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches 
and  seizures,  shall  not  be  violated ;  and  no  warrant  shall 


116 


National  Oovernment. 


88 


89 


90 


issue  but  upon  probable  cause,  supported  by  oath  or  afHr- 
mation,  and  particularly  describing  the  place  to  be  searched 
and  the  person  or  things  to  be  seized. 

[Adopted  1791.] 

ARTICLE  Y. 
Crimikal  Proceedings. 

No  person  shall  be  held  to  answer  for  a  capital  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury,  except  in  cases  arising  in  the  land  or 
naval  forces,  or  in  the  militia  when  in  actual  service,  in 
time  of  war  or  public  danger;  nor  shall  any  person  be  sub- 
ject, for  the  same  offence,  to  be  twice  put  in  jeopardy  of 
life  or  limb,  nor  shall  be  compelled,  in  any  criminal  case, 
to  be  a  witness  against  himself;  nor  be  deprived  of  life, 
liberty,  or  property  without  due  process  of  law ;  nor  shall 
private  property  be  taken  for  public  use  without  just  com- 
pensation. 

[Adopted  1791.] 

ARTICLE  VL 
Criminal  Proceedings. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial  by  an  impartial  jury  of 
the  State  and  district  wherein  the  crime  shall  have  been 
committed,  which  district  shall  have  been  previously  ascer- 
tained by  law,  and  to  be  informed  of  the  nature  and  cause 
of  the  accusation;  to  be  confronted  with  the  witnesses 
against  him;  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor;  and  to  have  the  assistance  of  counsel 
for  his  defence. 

[Adopted  1791.] 

ARTICLE  YII. 
Jury  Trial  in  Civil  Cases. 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall 


Origin  and  Nature.  117 


91 


93 


93 


94 


be  preserved,  and  no  fact  tried  by  a  jury  stall  be  otherwise 
re-examined  in  any  court  of  the  United  States  than  accord- 
ing to  the  rules  of  the  common  law. 

[Adopted  1791.] 


AETICLE  VIII. 

Excessive  Punishments. 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

[Adopted  1791.] 

ARTICLE  IX. 
Rights  of  People  not  named. 

The  enumeration  in  the  Constitution  of  certain  rights 

shall  not  be  construed  to  deny  or  disparage  others  retained 

by  the  people. 

[Adopted  1791.] 

ARTICLE  X. 

Powers  reserved  to  States. 

The  powers  not  delegated  to  the  United  States,  by  the 

Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 

to  the  States  respectively,  or  to  the  people. 

[Adopted  1791.] 

ARTICLE  XL 

Suits  against  States. 

The  judicial  powder  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens 
of  another  State,  or  by  citizens  or  subjects  of  any  foreign 

State. 

[Adopted  1798.] 


118 


National  Government, 


95 


9r> 


ARTICLE  XII. 
Election  of  President  and  Vice-President. 

1.  The  Electors  shall  meet  in  their  respective  States  and 
vote  by  ballot  for  President  and  Vice-President,  one  of 
whom  at  least  shall  not  be  an  inhabitant  of  the  same  State 
with  themselves ;  they  shall  name  in  their  ballots  the  per- 
son voted  for  as  President,  and  in  distinct  ballots  the 
person  voted  for  as  Vice-President,  and  they  shall  make 
distinct  lists  of  all  persons  voted  for  as  President,  and  of  all 
persons  voted  for  as  Vice-President,  and  of  the  number  of 
votes  for  each,  which  lists  they  shall  sign  and  certify,  and 
transmit,  sealed,  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate; — the  Presi- 
dent of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and  the 
votes  shall  then  be  counted ; — the  person  having  the  great- 
est number  of  votes  for  President  shall  be  the  President, 
if  such  number  be  a  majority  of  the  whole  number  of  Elec- 
tors appointed;  and  if  no  person  have  such  majority, 
then,  from  the  persons  having  the  highest  numbers,  not 
exceeding  three,  on  the  list  of  those  voted  for  as  President, 
the  House  of  Representatives  shall  choose  immediately,  by 
ballot,  the  President.  But  in  choosing  the  President,  the 
votes  shall  be  taken  by  States,  the  Representatives  from 
each  State  having  one  vote;  a  quorum  for  this  purpose 
shall  consist  of  a  member  or  members  from  two-thirds  of 
the  States,  and  a  majority  of  all  the  States  shall  be  neces- 
sary to  a  choice.  And  if  the  House  of  Representatives 
shall  not  choose  a  President  whenever  the  right  of  choice 
shall  devolve  upon  them,  before  the  fourth  day  of  March 
next  following,  then  the  Vice-President  shall  act  as  Presi- 
dent, as  in  the  case  of  the  death  or  other  constitutional  dis- 
ability of  the  President. 

2.  The  person  having  the  greatest  number  of  votes  as 
Vice-President  shall  be  the  Vice-President,  if  such  number 
be  a  majority  of  the  whole  number  of  Electors  appointed; 
and  if  no  person  have  a  majority,  then,  from  the  two  high- 
est numbers  oa  the  list,  the  Senate  shall  choose  the  Vice- 


Origin  and  Nature,  119 


97 


98 


99 


President;  a  quorum  for  the  purpovse  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of 
the  whole  number  shall  be  necessary  to  a  choice. 

3.  But  no  person  constitutionally  ineligible  to  the  office 
of  President  shall  be  eligible  to  that  of  Vice-President  of 

the  United  States. 

[Adopted  1804.] 

ARTICLE  XIIL 
Slavery. 

Section  1.  Abolition  of  Slavery. 

Neither  slavery  nor  involuntary  servitude,  except  as  a 
punishment  for  crime,  whereof  the  party  shall  have  been 
duly  convicted,  shall  exist  within  the  United  States,  or  any 
place  subject  to  their  jurisdiction. 

Section  2.  Power  of  Congress. 

Congress  shall  have  power  to  enforce  this  article  by  ap- 
propriate legislation. 

[Adopted  1865.] 

ARTICLE  XIV. 

Civil  Rights  :  Apportionment  of  Represen- 
tatives :  Political  Disabilities  :  Public 
Debt. 

Section  1.  Civil  Eights. 

All  persons  born  or  naturalized  in  the  United  States, 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside. 
No  State  shall  make  or  enforce  any  law  which  shall  abridge 
the  privileges  or  immunities  of  citizens  of  the  United 
States;  nor  shall  any  State  deprive  any  person  of  life, 
liberty,  or  property  without  due  process  of  law,  nor  deny 
to  any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws. 


120 


National  Government, 


lOO 


lOl 


102 


Section  2.  Apportionment  of  Repi*esentatives. 

Representatives  shall  be  apportioned  among  the  several 
States  according  totheir  respective  numbers,  counting 
the  whole  number  of  persons  in  each  State,  excluding 
Indians  not  taxed.  But  when  the  right  to  vote  at  any 
election  for  the  choice  of  Electors  for  President  and  Vice- 
President  of  the  United  States,  Representatives  in  Congress, 
the  executive  and  judicial  officers  of  a  State,  or  the  mem- 
bers of  the  Legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty -one  years  of 
age,  and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion  or  other 
crime,  the  basis  of  representation  therein  shall  be  reduced 
in  the  proportion  which  the  number  of  such  male  citizens 
shall  bear  to  the  whole  number  of  male  citizens  twenty  one 
years  of  age  in  such  State. 

Section  3.  Political  Disabilities. 

No  person  shall  be  a  Senator  or  Representative  in 
Congress,  or  Elector  of  President  and  Vice-President,  or 
hold  any  office,  civil  or  military,  under  the  United  States, 
or  under  any  State,  who,  having  previously  taken  an  oath, 
as  a  member  of  Congress,  or  as  an  officer  of  the  United 
States,  or  as  a  member  of  any  State  Legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given  aid  or 
comfort  to  the  ememies  thereof.  But  Congress  may,  by  a 
vote  of  two-thirds  of  each  House,  remove  such  disability. 

Section  4.  Public  Debt. 

The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment 
of  pensions  and  bounties  for  services  in  suppressing 
Insurrection  or  rebellion,  shall  not  be  questioned.  But 
neither  the  United  States  nor  any  State  shall  assume  or 
pay  any  debt  or  obligation  incurred  in  aid  of  insurrection 
or  rebellion  against  the  United  States,  or  any  claim  for 


Origin  and  Nature, 


121 


103 


loss  or  emancipation  of  any  slave ;  but  all  such  debts,  ob- 
ligations, and  claims  shall  be  held  illegal  and  void. 

Section  6. — Power  of  Congress. 

The  Congress  shall  have  power  to  enforce,  by  ap- 
propriate legislation,  the  provisions  of  this  article. 

[Adopted  1868.J 

ARTICLE   XV. 

Right  of  Suffrage. 
Section  1.— Right  of  Negro  to  vote. 

The  right  of  citizens  of  the  United  States  to  vote  shall 
not  be  denied  or  al)ridged  by  the  United  States,  or  by  any 
State,  on  account  of  race,  color,  or  previous  condition  of 
servitude. 

Section  2. — Power  of  Congress. 

The  Congress  shall   hava  pcwer  to  enforce  this  article 

,te  legislation. 

fAdopted  1870.'^ 


by  appropriate  legislation. 


SUBJECT  AT^ALTSIS. 


I.  Constitution. 


525 


o 
l-l 
H 

W 

H 


I.  Legislative  Depaetment;  [Art.  I.] 
f  I.  Its  Composition  ;  * 

1.  Division  into  Two  Houses,  [Sec.  l.J 

2.  House  of  Representatives,  [Sec.  2.] 

3.  Senate.     [Sec.  3.] 

II.  Legislative  Regulations; 

1.  Elections  and  Meetings,  [Sec.  4.] 

2.  Powers  and  Duties,  [Sec.  5.] 
(except  law-making  powers,) 

3.  Privileges   of  and  Prohibitions  upon  Members 
[Sec.  6.] 

III.  President's  Veto  Power.     [Sec.  7.] 

IV.  Legislative  Powers  of  Congress.     [Sec.  8.] 
V.  Prohibitions  upon  the  United  States.    [Sec.  9.  ] 

VI.  Prohibitions  upon  the  States.*     [Sec.  10.] 

II.  Executive     Department— President    and    Vice- 

President;  [Art.  II.] 

ri.  (1)  Term,  (2)  Election,  (3)  Qualifications,  (4)  Salary,  (5) 

I  Oath,  [Sec.  1.] 

I  2.  President's  Executive  Powers,  [Sec.  2  and  3.] 

[3.  Subject  to  Impeachment.     [Sec.  4.] 

III.  Judicial  Department ;  [Art.  III.] 

( 1.  (1)  Courts,  (2)  Term  of  Office,  (3)  Salary,  [Sec.  1.] 
•j  2.  Jurisdiction,  [Sec.  2.] 
(3.  Treason.     [Sec.  3.] 


*  This  logically  does  not  belong  to  the  division  "  The  National  Government," 
but  to  "  Miscellaneous  Provisions,"  but  it  is  thought  best  to  retain  the  order  of 


o 

CO 

^-^ 

O 
Ph 

03 

o 

»-^ 
p^ 

i 


Subject  Analysis.  123 


L  Relations  OF  States;  [Art.  IV.] 

1.  Records  of  one  State  in  another,  [Sec.  1.] 

2.  Rights  in  one  State  of  Citizens  of  another,  [Sec.  2.] 

3.  (1)  New  States,  (2)  U.  S.  Territory,  [Sec.  3.] 
^4.'*  Protection  of  States  by  Nation.     [Sec.  4] 

II.  Amendment.  [Art.  V.] 

III.  (1)  National  Debt;  (2)  National  Supeemacy; 

(3)  Oath.    [Art.  VI.] 

IV.  Establishment  of  Constitution.    [Art.  VII]. 


II.  Amendments. 


1.  Arts.  I.-VIII.  Prohibitions  on  Congress  as  to  Personal  Rights. 

2.  Arts.  IX.  and  X.  Rights  not  named  in  Constitution. 

3.  Art.  XI.  Judicial  Jurisdiction. 

4.  Art.  XII.  Electioiv  of  President  and  Vice-President. 

5.  Art.  Xlll.  Abolition  of  Slavery. 

6.  Art.  XIV.  (1)  Equal  Civil  Rights,  (2)  Apportionment  of  Represen- 

tatives, (3)  Political  Disabilities,  (4)  Public  Debt. 

7.  Art.  XV.  Right  of  Suffrage. 


the  Constitution  itself.  There  are  some  other  cases  where  the  true  log^c^l 
order  is  not  followed  in  the  Constitution.  The  provisions  regarding  the  choos- 
ing of  offlcers  and  impeachment  in  sections  2  and  3  of  Article  I.  would  more 
properly  comt  jn  section  5,  as  they  relate  to  certain  powers  of  the  Houses. 
That  regarding  revenue  bills  in  section  7  would  properly  fall  in  the  following 
eection,  as  it  relates  to  the  law-making  powers  of  Congress. 


124  National  Government, 


SECTION  II. 
Legislative  Depaetment. 


CHAPTER  XXV. 

HOUSE   OF   KEPKESEKTATIVES. 

1.  Preamble. — The  preamble  is  an  important  part  of  the 
Constitution.  The  object  of  the  Constitution  was  to 
remedy  the  defects  existing  under  the  Confederation,  and 
some  of  the  clauses  of  the  preamble  refer  to  those  defects 
(1).*  We  have  seen  that  the  Union  then  was  a  very  im- 
perfect one.  Instead  of  there  being  '^  domestic  tranquillity" 
the  States  were  continually  quarrelling.  It  was  impossible 
to  "provide  for  the  common  defence"  of  the  country 
against  foreign  enemies,  or  to  ^'  promote  the  general  wel- 
fare" by  broad  measures,  unless  there  were  a  strong  central 
government.  Had  the  Constitution  not  been  adopted  and 
had  the  States  remained  independent,  it  is  not  probable  that 
the  country  would  have  had  the  unexampled  prosperity 
that  it  has. 

2.  Congress. — This  is  the  name  of  the  national  legisla- 
tive body,  and  like  the  state  legislatures  it  is  divided  into 
two  Houses,  called  the  Senate  and  House  of  Representa- 
tives (2).  The  former  represents  the  States,  and  the 
latter  the  people.      The  members  of  the  House,  f  called 

*  The^e  numbers  refer  to  the  paragraphs  of  the  Constitution. 
The  pupil  should  turn  back  to  it  at  each  reference. 

f  The  House  of  Representatives  is  frequently  called  simply  the 
"House"  when  spoken  of  in  connection  with  the  Senate- 


Legislative  Department.  125 

Representatives,  are  elected  by  the  people  of  the  States 
every  eecond  year  (3).  Members  of  the  Congress  under 
the  Confederation  were  appointed  by  the  state  legislatures, 
and  for  one  year. 

3.  Electors. — There  was  much  discussion  and  difference 
of  opinion  in  the  Convention  as  to  what  should  be  the 
qualifications  of  the  voters  who  should  elect  the  Representa- 
tives. The  qualifications  of  electors  were  various  in  the 
different  States.  In  some  of  them  owners  of  property,  or 
tax-payers,  in  others  freeholders*  only,  were  voters.  In 
some,  only  the  latter  voted  for  the  higher  officers;  in  a  few, 
suffrage  was  almost  universal.  Finally,  as  a  compromise, 
it  was  decided  that  the  qualifications  should  be  the  same 
in  each  State  as  those  requisite  for  electors  of  its  lower 
house,  as  it  was  presumed  no  State  would  object  to  such  a 
rule  (3). 

4.  Qualifications. — A  Representative  must  be  twenty- 
five  years  uf  age,  must  have  been  a  citizen  seven  years,  and 
must  live  in  the  State  from  which  he  is  chosen  (4).  The 
reasons  for  this  will  be  readily  understood.  If  voters  must 
have  certain  qualifications,  surely  those  who  make  laws  foi 
them  should  have  higher  ones.     (See  Chap.  V.) 

5.  Number. — The  Constitution  does  not  limit  the  House 
to  any  definite  number  of  Representatives;  it  only  declares 
that  the  number  shall  not  exceed  one  for  every  30,000  in- 
habitants. Otherwise  it  might  become  too  large.  It  re< 
quires  an  enumeration  of  the  inhabitants  every  ten  years; 
and  the  next  Congress  thereafter  determines  the  ratio  of 
representation  f  and  the  number  of  Representatives,  and 
apportions  them  among  the  States  (5). 

6.  Present  Niunber. — The  first  House  of  Representatives 

*  A  freeholder  is  one  owning  land,  either  absolutely  or  during  his 
own  or  some  one  else's  life. 

f  The  word  ratio  signifies  rate,  or  proportion.  It  here  means  the 
number  or  portion  of  the  inhabitants  entitled  to  a  Representative. 


126  Rational  Government. 

consisted  of  sixty-five  members,  and  the  ratio  was  about  one 
to  every  50,000  inhabitants.  Since  then,  as  the  population 
has  increased.  Congress  has  increased  tlie  ratio,  in  order 
that  the  House  might  not  grow  too  large  to  transact  busi- 
ness, but  in  spite  of  that  the  House  has  grown,  until  now 
(1883)  it  consists  of  three  hundred  and  twenty-five  mem- 
bers, being  about  one  for  every  150,000. 

7.  Every  State  Represented. — But  it  might  happen 
(and  has  happened)  that. some  States  would  not  have  a 
population  equal  to  the  ratio.  In  view  of  this  the  Consti- 
tution provides  that  no  State  shall  lose  its  representation  in 
the  House,  by  declaring  that  each  State  shall  have  at  least 
one  Representative  (5). 

8.  Apportionment. — With  regard  to  how  many  Repre- 
sentatives the  different  States  should  have  the  Convention 
found  it  difficult  to  agree.  In  the  Congress  under  the  Con- 
federation, it  will  be  remembered,  the  States  were  entitled 
to  an  equal  number  of  delegates,  and  each  State  had  one 
vote.  But  now  it  was  proposed  to  apportion  the  Represen- 
tatives according  to  population.  On  this  point  there  were 
two  causes  of  contention.  First :  The  small  States  opposed 
it,  because  it  gave  them  fewer  Representatives,  and  there- 
fore less  power  in  Congress.  The  large  States  insisted  on 
it,  saying  that  they  ought  to  have  greater  power  because 
they  had  gi*eater  interests.  Finally  the  small  States  yielded 
with  regard  to  the  House  of  Representatives.  Second:  The 
slaveholding  (Southern)  States  claimed  that,  in  reckoning 
the  population  for  the  purpose  of  apportioning  Representa- 
tives, slaves  should  be  included;  the  non-slaveholding 
(Northern)  States  *  insisted  that  only  free  persons  should 


*  Slavery  then  existed  in  all  the  States  except  Massachusetts;  but 
as  there  were  very  few  slaves  in  the  Northern  States,  they  are  generally 
spoken  of  as  if  they  were  at  that  time  non-slaveholding  States. 


Legislative  Department.  197 

be  included,  as  the  slaves  could  not  vote  themselves,  and  it 
was  unjust  to  give  the  free  persons  extra  votes  simply  be- 
cause they  owned  certain  property — that  being  what  slaves 
were  considered.  The  controversy  on  this  point  rose  so 
high,  and  the  parties  were  for  a  long  time  so  unyielding, 
fchat  fears  were  entertained  of  a  sudden  dissolution  of  the 
Convention. 

9.  Result. — The  result  was  a  compromise.  The  North- 
ern States  finally  consented  that  three-fifths  of  the  slaves 
[the  words  ^'all  other  persons"  in  section  2  (5)  mean 
slaves]  should  be  counted,  and  the  Southern  States  con- 
sented that  direct  taxes  should  be  laid  on  the  same  basis; 
so  that  the  Southern  States  would  have  the  larger  share 
of  Eepresentatives,  but  would  pay  the  larger  share  of 
direct  taxes.*  But,  as  it  resulted,  the  advantage,  contrary 
to  anticipation,  was  almost  wholly  on  the  side  of  the 
Southern  States,  for  very  few  direct  taxes  were  laid  before 
the  late  Civil  War,  and  thus  they  obtained  the  increased 
representation  without  the  corresponding  inorease  in  taxa- 
tion. 

10.  Present  Rule. — The  state  of  things  described  in  the 
last  section  with  regard  to  apportionment  existed  up  to  the 
Civil  War.  The  13th,  14th,  and  15th  Amendments 
changed  the  system.     Now  Eepresentatives  are  apportioned 


*  To  illustrate  this  rule  by  an  example :  Suppose  a  State  contained 
600,000  free  persons  and  500,000  slaves.  Adding  three-fifths  of  the 
number  of  slaves  (300,000)  to  the  number  of  free  persons  gives 
900,000  as  the  number  of  the  representative  population:  and  the 
State  would  have  been  entitled  to  three  Representatives  for  every 
two  that  a  State  which  contained  600,000  free  inhabitants  and  no 
slaves  would  have.  So  in  apportioning  taxes  according  to  population, 
the  State  in  the  case  we  have  supposed  would  have  been  obliged  to 
raise  three  dollars  for  every  two  that  it  would  have  been  obliged  to 
xaise  if  no  slaves  had  been  counted. 


128  National  Oovernment. 

in  proportion  to  the  total  population,  whether  white  or 
black  (100).* 

11.  Territories. — By  an  act  of  Congress,  every  Territory 
in  which  a  government  has  been  established  is  entitled  to 
send  a  delegate  to  Congress,  who  has  a  right  to  take  part 
in  the  debates  of  the  House,  but  not  the  right  of  voting 
there- 


CHAPTER   XXVI. 

SENATE. 

1.  Reasons  for  Two  Houses. — In  this  country  and  in 
England  it  is  thought  best  that  the  legislative  body  should 
consist  of  two  houses.  If  there  were  only  one  house  it 
might  pass  some  very  harmful  or  unjust  laws,  either  through 
undue  haste,  ignorance,  popular  excitement,  or  tlie  undue 
influence  of  popular  but  mistaken  leaders.  But  if  there 
were  another  house,  it  would  be  improbable  that  the  very 
game  influences  should  exist  in  both,  and  thus  one  house 
would  correct  the  hasty  Isgislation  of  the  other.  And  if 
one  house  were  of  a  higher  grade  than  the  other,  composed 
of  wiser  men,  it  is  seen  that  its  restrictive  influence  would 
be  of  the  greater  value. 

2.  Character  of  Senate. — For  these  reasons  the  Consti- 
tution has  established  the  Senate,  and  has  made  it  a  body 
of  greater  dignity  than  the  House  of  Representatives.  The 
causes  which  make  the  Senate  the  more  select  body  are 
four  in  numb?.r:   (1)  it  has  fewer  members;  (2)  they  are 

*  The  number  of  Indians  not  taxed  is  so  small  that  it  need  not  be 
considered. 


Legislative  Department.  129 

elected  by  the  State  legislatures  instead  of  by  the  people; 
(3)  the  term  of  office  is  longer;  and  (4)  the  qualification? 
are  higher. 

3.  State  Equality. — In  the  Senate  the  States  are  equal 
in  power,  each  having  two  members  (8).  The  Convention 
readily  agreed  upon  dividing  Congress  into  two  branches; 
but,  as  has  been  observed,  it  was  difficult  to  settle  the  mode 
of  representation.  The  delegates  from  the  large  States  in- 
sisted upon  a  representation  in  proportion  to  population, 
in  the  Senate  as  well  as  in  the  House;  and  the  small  States 
contended  for  equality  in  both  branches.  The  debate  was 
long  and  animated;  and  it  became  apparent  that,  as  in  the 
case  of  slave  representation  in  the  House,  there  must  be  a 
compromise.  This  was  at  length  effected;  the  small  States 
consenting  to  a  proportional  representation  in  the  House, 
and  the  large  States  to  an  equal  representation  in  the 
Senate.*  Thus  while  the  House  represents  the  people,  the 
Senate  represents  the  States,  and  this  is  one  instance  in 
which  the  federation  principle  is  retained.  (See  page  100, 
sec.  7.) 

4.  Voting. — In  the  Congress  under  the  Confederation 
the  voting  was  by  States,  but  the  Senate  differs  in  that  re- 
spect. There  the  Senators  vote  separately,  the  vote  of  each 
Senator  counting  one,  as  in  the  House;  and  a  question  is 
decided  by  the  united  votes  of  a  majority  of  the  members, 
and  not  by  the  vote  of  a  majority  of  the  States  (8). 

5.  Term. — The  period  of  six  years  was  also  the  result  of 
a  compromise  in  the    Convention  (8).     The   terms   pro- 

*  It  will  be  noticed  that  in  the  Convention  which  framed  the 
Constitution  there  were  many  opposing  interests,  and  that  com- 
promises were  frequently  necessary,  each  State  giving  up  something. 
It  was  a  spirit  of  patriotism  which  caused  this,  as  well  as  the  instinct 
of  self-preservation,  for  without  compromise  no  permanent  union 
could  have  been  formed,  saving  the  rights  of  all. 


130  National  Government 

posed  yaried  from  three  to  nine  years,  or  even  longer.  One 
object  in  making  it  longer  than  a  Representative's  term 
was  to  obtain  a  body  of  men  wiser  and  more  experienced 
than  the  House  would  contain.  Where  a  man  is  to  be 
elected  for  a  long  term  greater  care  will  be  used  in  selecting 
him.  A  second  object  was  to  obtain  independence  of 
popular  impulses.  The  Eepresentatives  were  to  reflect  the 
will  of  the  people,  and  so  it  was  provided  that  they  might 
be  often  changed:  but  the  Senators  were  to  serve  as  a  check 
upon  hasty  action  by  the  people's  representatives,  and  for 
this  purpose  they  must  feel  independent  of  the  people  to  a 
certain  degree.  A  long  term  tends  to  give  this  independ- 
ence. A  third  object  was  to  check  frequent  changes  in  the 
laws.  The  oftener  a  legislature  is  changed  the  more 
changeable  and  uncertain  will  be  the  laws;  and  uncertainty 
and  change  often  do  more  injury  than  evil  laws. 

6.  Gradual  Change. — Senators  are  not  all  elected  at  the 
same  time.  One-third  go  out  of  office  every  two  years  (9). 
In  favor  of  this  arrangement  are  two  important  considera- 
tions. First:  It  secures  to  the  public  at  all  times  the 
benefit  of  the  experience  of  at  least  two-thirds  of  the  body. 
Whereas,  if  the  terms  of  all  the  Senators  expired  at  once, 
their  places  might  be  supplied  mainly  by  new  members 
without  the  requisite  knowledge  and  experience.  Second: 
While  a  long  term  is  intended  to  guard  against  the  too  fre- 
quent changes  in  the  laws,  it  may  also  prevent,  for-  too 
long  a  time,  the  amendment  or  the  repeal  of  bad  laws. 
Such  amendment  or  repeal  may  be  hastened  by  the  election 
of  new  members  in  the  place  of  the  one-third  who  retire 
every  two  years. 

7.  Qualifications. — Why  these  are  higher  than  in  the 
case  of  Representatives  has  been  explained  (see  sec.  2).  An 
additional  reason  for  requiring  them  to  have  been  citizens 
of  the  United  States  nine  years  is  found  in  the  fact  that, 


Legislative  Department,  131 

with  the  President,  they  make  treaties  with  foreign  nations 
(62).  A  Senator  should  therefore  have  lived  here  long 
enough  to  have  become  free  from  bias  in  favor  of  his  native 
country. 


CHAPTER  XXVII. 

GENEKAL  LEGISLATIVE   REGULATIONS.* 

1.  Choice  of  Officers. — It  is  considered  important  in 
legislative  bodies  that  each  house  should  have  the  choice 
of  its  own  officers,  in  order  that  it  may  have  proper  control 
of  them.  A  Speaker  not  responsible  to  the  House  of 
Representatives  (e.g.  if  appointed  by  the  President)  might 
baffle  the  will  of  the  entire  House.  One  exception  to  this 
rule  is  that  the  Vice-President  presides  in  the  Senate.  The 
States  follow  this  by  having  the  Lieutenant-Governor  pre- 
side in  the  state  senate  (7,  12). 

2.  Impeachment. — Impeachment  and  its  trial  have  been 
described  before  (see  page  79).  As  in  the  state  legislatures, 
so  in  Congress,  the  lower  House  impeaches  and  the  upper 
House  tries.  The  officers  subject  to  impeachment  by  the 
national  House  of  Representatives  are  the  President,  Vice- 
President,  and  all  civil  officers  of  the  United  States  (not  of 
any  State)  (65).  This  means  all  members  of  the  civil  (i.e. 
not  military),  executive  and  judicial  departments  of  the 
Nation.  Thus  neither  members  of  Congress  nor  of  the 
army  or  navy  can  be  removed  in  this  way.  In  practice  only 
officials  of  the  highest  rank  are  ever  impeached. 

*  Most  of  the  provisions  contained  in  sections  4,  5,  6,  and  7  of 
Article  I.  will  be  easily  understood,  and  many  of  them  are  similar  to 
]^rovisions  in  the  state  constitutions.  We  will  speak  only  of  a  few 
which  require  some  explanatioli.^ 


132  National  Government: 

3.  Meetings  of  Congress. — Congress  meets  every  year, 
in  December  (16).  But  as  every  second  year  the  entire 
House  of  Kepresentatives  and  one-third  of  the  Senate  are 
elected  anew,  the  two  sessions  following  an  election  are 
classed  together  and  called  *^A  Congress."  The  meeting 
of  Congress  in  December  1881  was  the  first  session  of  the 
47th  Congress. 

4.  Rules. — Like  state  legislatures  each  House  of  Congress 
has  its  rules,  which  in  most  cases  are  strictly  followed.  A 
bill  is  introduced,  referred  to  its  appropriate  committee, 
reported  by  the  committee,  read,  debated,  and  passed  (or 
rejected),  in  substantially  the  same  manner  as  in  state 
legislatures  (see  page  42).  But  at  any  time  either  House 
may  set  aside  all  its  rules,  and  pass  laws  in  any  manner  it 
sees  fit,  provided  no  provision  of  the  Constitution  is 
violated. 

6.  Salary. — In  the  Convention  there  was  much  discus- 
sion as  to  whether  it  would  be  wise  to  allow  salaries  to 
members  of  Congress.  On  the  one  hand  it  was  said  salaries 
would  tempt  unworthy  men  to  intrigue  for  an  election;  on 
the  other  hand,  the  worthiest  men  might  be  shut  out 
through  poverty  if  no  compensation  were  allowed.  It  was 
decided  to  allow  compensation.  The  amount  is  fixed  by 
Congress  itself  (21). 

6.  Arrest  of  Members. — Members  of  Congress  (except 
in  certain  cases)  cannot  be  arrested  when  Congress  is  in 
session  (21).  This  is  in  order  that  the  people  who  elect 
them  may  not  be  deprived  of  their  services. 

7.  Liberty  of  Speech. — The  clause  which  says  that  a 
member  '*  shall  not  be  questioned  in  any  other  place"  for 
any  speech,  means  that  he  shall  not  be  sued,  either  civilly 
or  criminally,  for  anything  he  says  in  debate  (21).  This 
is  in  order  that  members  may  feel  the  fullest  freedom  and 
independence. 


Legislative  Department,  133 

8.  Revenue  Bills. — These  are  bills  for  raising  money  for 
the  government,  either  by  direct  or  indirect  taxation.  All 
other  laws  may  originate  in  either  House,  but  these  must 
be  passed  by  the  House  of  Eej^resentatives  first  (23).  The 
reason  for  this  is  that  since  the  people  pay  the  taxes,  it  is 
appropriate  that  the  Eepresentatives  elected  directly  by 
them  should  propose  all  such  laws. 

9.  Veto. — But  a  bill  having  passed  both  Houses  is  not 
yet  a  law.  It  must  be  presented  to  the  President,  who  is 
thus  a  part  of  the  legislative  department.  There  are  three 
ways  in  which  a  bill,  after  having  passed  both  Houses,  may 
become  a  law:  (1)  it  may  be  signed  by  the  President;  (2) 
he  may  neglect  to  sign  it  for  ten  days;  and  (3)  he  may  re- 
turn it  to  Congress  within  ten  days,  and  each  House  may 
pass  it  a  second  time  by  a  two-thirds  vote  (24,  26). 


CHAPTEE  XXVIIL 

POWERS    OF    TAXATION. 

1.  Nature  of  the  National  Government. — Before  treat- 
ing of  the  several  legislative  powers  we  will  first  speak  of  a 
certain  characteristic  of  the  General  Government  in  which 
it  differs  from  the  States,  and  which  must  be  always  kept 
in  mind  when  considering  its  law-making  powers.  The 
United  States  Government  is  a  government  of  delegated 
powers;  that  is,  powers  which  have  been  delegated  to  it  by 
the  States,  or  the  people  of  the  States.  It  has  only  such 
powers  as  the  People  have  given  it,  in  the  Constitution. 
Hence  it, is  called  a  government  of  limited  powers.  The 
States,  on  the  other  hand,  existing  before  the  General  Gov- 


134  National  Government. 

ernment,  and  possessing  entire  sovereignty,  at  least  in 
theory,  may  exercise  all  powers  which  they  have  not  sur- 
rendered to  the  General  Government.  In  other  words, 
their  powers  are  unlimited,  except  so  far  as  they  have 
parted  with  any  of  their  original  powers.  Thei'efore,  when 
the  question  arises  whether  the  President  or  Congress  have 
certain  powers,  we  look  in  the  Constitution,  and  if  they  are 
not  there  granted,  they  do  not  exist.  But  when  the 
question  arises,  with  regard  to  a  State,  whether  its  people 
have  a  certain  power,  we  approach  it  from  the  other 
side  and  say  they  have  the  power  unless  the  United 
States  Constitution  has  taken  it  away.  Most  of  the 
legislative  powers  of  Congress  are  enumerated  in  Article 
I.,  section  8.     The  first  one  grants  the  power  to  tax  (26). 

2.  Necessity  for  the  Taxing  Power. — This  is  one  of  the 
most  important  powers  of  government.  A  government 
without  the  power  to  raise  money  hardly  deserves  the  name. 
Without  money  it  would  have  no  power  to  enforce  obedi- 
ence to  its  laws,  for  it  could  not  pay  soldiers  or  civil  officers, 
and  men  will  not  serve  without  pay.  We  have  seen  how 
the  Confederation  tried  the  experiment  and  failed.*  This 
was  one  of  its  errors,  corrected  in  the  Constitution. 

3.  Manner  of  Taxation. — Taxes  f  may  be  laid  by  the 

*  See  page  95. 

t  The  four  words,  taxes,  duties,  imposts,  and  excises,  are  not  used 
to  mean  four  different  things,  but  only  to  cover  all  the  usual  methods 
of  taxation.  These  words  have  not  fixed  meanings.  Some  of  them 
have  different  meanings  in  different  connections.  At  times  some 
have  the  same  meaning  as  others.  Their  most  usual  meanings  when 
used  in  connection  with  one  another  are  perhaps  these :  taxes,  direct 
taxes  laid  on  individuals,  either  as  poll  taxes,  or  taxes  in  proportion 
to  property  (see  Chap.  XV.,  for  distinction  between  direct  and  indirect 
taxes);  duties,  indirect  taxes  of  all  kinds,  including  taxes  on  exports, 
imports,  and  excises;  imposts,  duties  on  imports;  excises,  duties  on 
goods  manufactured  and  used  here.     Another  word,  customs,  usually 


Legislative  Department,  135 

General  Government  in  three  ways  :  (1)  upon  persons 
directly,  as  poll  or  property  taxes;  (2)  upon  goods  when 
they  are  imported  into  the  country  from  abroad,  or  (3) 
upon  goods  whjn  they  are  manufactured  and  used  here. 
This  clause  (26)  would  also  grant  the  power  to  lay  export 
duties — that  is,  duties  to  be  paid  on  goods  when  sent  from 
this  to  foreign  countries — did  not  a  later  provision  forbid 
it  (48). 

4.  Objects. — The  objects  for  which  taxes  may  be  laid  are 
also  enumerated  in  the  same  clause  (26).  Since  it  is  the 
theory  of  the  Constitution  that  Congress  shall  have  power 
over  only  those  matters  which  affect  the  whole  country, 
leaving  all  local  matters  to  the  States,  so  no  tax  can  be  laid 
except  for  some  purpose  of  interest  to  all  the  people  of  the 
Nation.      But  the  phrase  '^  general  welfare"  is  very  broad. 

5.  Uniformity. — The  Constitution  is  careful  to  pro- 
vide that  no  State  shall  pay  more  than  its  just  share  of 
taxes.  There  are  several  provisions  regulating  this. 
First,  direct  taxes  must  be  laid  in  proportion  to  population 
(6,  98);  second,  all  indirect  taxes  which  may  be  laid  (i.e. 
imposts  and  excises)  must  be  uniform  throughout  the 
country  (26);  third,  no  export  duties  can  be  laid  (48). 
The  reasons  for  the  last  provision  are  that  a  tariff  *  of  ex- 
port duties  which  would  bear  equally  on  the  States  would 
be  very  difficult  to  make,  since  they  do  not  export  the  same 

means  duties  on  imports  and  exports,  but  in  this  country,  since  there 
are  no  export  duties,  it  usually  means  the  same  as  imposts. 

Duties  are'  specific  and  ad  valorem.  A  specific  duty  is  a  specified 
sum  of  money  charged  upon  every  yard,  pound,  or  gallon  of  any 
commodity.  Thus,  a  duty  of  ten  cents  on  a  pound  of  tea,  or  of  one 
dollar  on  a  yard  of  cloth,  or  of  fifty  cents  on  a  gallon  of  wine,  is  a 
specific  duty.  Ad  valorem  is  a  Latin  phrase,  signifying  according  to 
the  value.  An  ad  valorem  duty  is  a  certain  percentage  on  the  value  or 
price. 

^  A  tariff  means  a  list  of  duties  laid. 


136  National  Government. 

articles,  some  exporting  cotton,  others  grain,  and  others 
manufactures,  and  that  it  would  constitute  a  constant  cause 
of  irritation  between  the  States.  For  instance,  the  Repre- 
sentatives of  the  cotton  and  grain  States  might  combine 
and  pass  a  law  laying  very  low  duties  on  cotton  and  grain 
and  high  ones  on  manufactures. 

6.  Taxes  which  have  been  laid. — Up  to  the  late  Civil  War 
very  few  direct  taxes  had  been  laid  by  the  National  Gov- 
ernment. They  were  then  laid  for  a  few  years,  but  now 
(1882)  there  are  none.  Some  excise  duties  have  been  and 
are  now  laid,  chiefly  on  liquors  and  tobacco,  articles  that 
are  not  necessary  to  the  people,  but  are  luxuries.  During 
the  Civil  War  the  excise  duties  collected  were  about  equal 
to  the  customs.  But  from  the  beginning  very  many  duties 
on  imports  have  been  laid,  and  it  is  from  this  source  that 
most  of  the  revenue  has  been  raised. 

7.  Power  to  Borrow  Money. — This  is  given  to  Congress 
for  the  reasons  already  described,  which  justify  state  debts 
(page  71,  sec.  7)  (27).  This  power  was  exercised  during 
the  war  until  the  national  debt  nearly  reached  the  sum 
of  $3,000,000,000.  Without  this  power  the  government 
would  have  been  almost  helpless,  for  its  regular  income 
would  ha^e  been  wholly  inadequate. 


CHAPTER  XXIX. 

POWEE  TO   REGFLATE   COMMERCE  (28). 

1.  Why  given  to  Congress. — This  was  for  two  reasons: 
(1)  because  it  was  a  matter  of  general  and  universal  interest, 
and  (3)  because  of  the  benefits  that  would  flow  from  uni- 
formity.    The  need  of  no  power  was  more  deeply  felt  under 


Legislatwe  Department.  137 

the  Confederation  than  the  power  to  regulate  foreign  trade. 
We  thus  see  that  the  power  to  lay  duties  comes  from  two 
clauses.  One  (26)  gives  Congress  the  power,  but  only  for 
purposes  of  revenue.  If  none  should  be  needed  for  that 
purpose,  or  if  the  duties  laid  for  revenue  were  not  sufficient 
to  regulate  commerce,  they  might  be  laid  under  the  other 
clause  (28)  to  any  amount. 

2.  Nature  of  Regulation. — This  regulation  is  of  two 
kinds:  (1)  the  laying  of  duties  on  goods  imported  from 
abroad,  for  the  purpose  of  protecting  the  commercial  inter- 
ests of  this  country;  and  (2)  making  regulations  which  shall 
tend  to  render  navigation  less  dangerous.  The  manner 
and  object  of  regulating  commerce  by  means  of  import 
duties  will  be  seen  if  we  consider  the  trade  of  England  and 
America  as  it  was  after  the  Eevolution. 

3.  Retaliatory  Duties. — England  pursued  the  policy, 
for  her  own  benefit,  of  laying  heavy  duties  on  merchandise 
imported  there  from  this  country.  That  injured  us,  and 
so,  in  order  to  compel  her  to  abandon  the  policy,  we  wished 
to  lay  duties  on  articles  sent  here  by  the  English  merchants.  * 

*  The  effect  of  these  duties  may  not  be  quite  clear:  Suppose  the 
market  value  of  a  bushel  of  wheat  in  Great  Britain  to  be  %1,  and  the 
cost  of  raising  the  article  here  and  carrying  it  there  to  be  (together) 
$1.  We  can  then  raise  it  here  and  sell  it  there  along  with  the  English 
prodOcer.  If  now  a  duty  of  40  cents  a  bushel  is  laid  upon  wheat 
from  abroad,  we  cannot  sell  it  for  less  than  $1.40,  and  the  English 
consumer,  instead  of  buying  it  with  this  duty  added,  will  buy  of  the 
English  producer.  But,  the  people  of  this  country  being  then  chiefly 
agricultural,  more  wheat  was  produced  here  than  there  was  a  market 
for,  and  the  American  farmer  was  dependent  on  the  foreign  markets. 
Being  shut  out  of  the  English  market,  the  value  of  oar  products  fell, 
and  we  suffered  loss.  It  was  thought  then  that  if  we  retaliated  and 
laid  duties  on  manufactured  articles  (of  which  England  sent  us  a 
great  number),  and  so  shut  them  out,  she  would  be  influenced  to 
abandon  her  duties. 


138  National  Government 

Under  the  Confederation  this  was  attempted,  but  as  each 
State  could  lay  what  duties  it  chose,  there  was  no  uniform- 
ity, and  each  would  try  to  secure  the  trade  by  laying  lower 
duties  than  the  rest.  So  the  Constitution  gave  Congress 
exclusive  authority  over  the  whole  subject,  and  retaliatory 
duties  were  laid. 

4.  Protection. — Another  way  in  which  it  was  thought 
duties  on  imports  would  protect  the  commercial  interests 
of  the  country  was  in  encouraging  and  protecting  the 
manufacturing  interests.  *  This  theory  is  called  protection, 
and  is  the  policy  which  the  country  has  followed.  High 
protective  duties  have  been  laid  almost  from  the  beginning 
on  articles  manufactured  from  cotton,  wool,  and  iron. 

5.  Free  Trade. — But  it  is  believed  by  many  that  pro- 
tection is  a  mistaken  policy,  at  least  in  this  country  at  pres- 
ent, and  that  while  it  encourages  manufactures  it  injures 
some  other  interests.  The  opposing  policy  is  called  free 
trade.  Its  supporters  urge  that  if  the  yard  of  cloth  can 
be  brought  here  and  sold  for  less  than  it  can  be  made  here, 
the  people  who  pay  for  it  lose  by  shutting  it  out,  and  the 
few  manufacturers  are  the  only  ones  who  gain.f  The 
English  Government  now  acts  on  the  policy  of  free  trade. 


*  Suppose  foreign  cloth  of  a  certain  quality  is  sold  in  this  country 
for  $2.50  a  yard,  and  cloth  of  the  same  quality  manufactured  here 
cannot  be  made  for  less  than  $3  a  yard.  There  would  now  be  no 
encouragement  to  any  one  to  engage  in  the  manufacture  of  such 
cloth,  because,  in  order  to  sell  it,  he  must  reduce  the  price  to  that  of 
the  foreign  article,  which  would  subject  him  to  a  loss  of  fifty  cents  a 
yard.  Let  now  a  duty  of  $1  a  yard  be  laid  upon  the  foreign  cloth, 
and  the  price  would  be  $3.50,  and  preference  would  be  given  to  the 
domestic  article,  unless  the  importer  should  reduce  the  price  of  his 
foreign  cloth  to  $3 ;  in  which  case,  it  is  to  be  presumed,  about  an 
equal  quantity  of  each  would  be  consumed,  and  the  duty  of  $1  a 
yard  on  the  foreign  cloth  would  s^o  into  the  United  States  Treasury. 

f  The  question  of  free  trade  or  Drotection  belongs  to  the  science  of 


Legislative  Department.  139 

6.  Collection  of  Duties. — Certain  places  on  the  coast  are 
designated  by  the  laws  of -Congress,  called  ports  of  entry, 
and  a  vessel  mnst  first  come  to  one  of  these,  where  the 
master  delivers  a  statement  of  the  cargo  to  an  officer,  ap- 
pointed by  the  President,  called  a  collector  of  customs. 
The  cargo  is  then  examined,  and  the  duties  calculated  and 
paid  to  the  collector.  If  not  paid  the  collector  seizes  the 
goods,  which  are  forfeited  to  the  government. 

7.  Registry. — Another  regulation  of  commerce  is  that 
by  which  a  vessel  built  and  owned  in  this  country  may  be 
registered  on  the  collector's  books  as  an  American  vessel. 
As  such  it  has  certain  privileges  which  foreign  vessels  do 
not  have.  A  foreign  vessel  is  not  allowed  to  engage  in  the 
coast  trade  here.  An  American  vessel,  registered,  is  in  all 
places  entitled  to  the  full  protection  of  our  government, 
and  if  it  is  taken  or  injured  by  foreigners  in  foreign  waters 
the  United  States  Government  must  demand  reparation 
from  the  government  to  which  they  belong. 

8.  Clearance  and  Entry. — Every  time  a  vessel  (foreign 
or  domestic)  leaves  a  port,  what  is  called  a  clearance  must 
be  obtained.  This  is  a  certificate  by  the  collector  that  all 
the  fees  upon  the  vessel  have  been  paid,  and  the  law  been 
complied  with  in  all  respects.  So  when  a  vessel  arrives  at 
a  port,  the  master  must  report  its  arrival  to  the  collector  of 
the  port,  deliver  up  a  statement  of  its  cargo  and  the  clear- 
ance he  received  at  the  port  from  which  he  came.  This 
is  called  entering  the  vessel.* 

9.  Navigation  Laws. — Coming  now  to  the  second  class 
of  regulations  of  commerce.  Congress  has  passed  many  laws 

Political  Economy;  and  it  is  therefore  necessary  in  a  work  of  this 
character  only  to  refer  to  the  matter  and  not  attempt  to  give  the  argu- 
ments used  in  support  of  either  policy. 

*  In  the  coasting  trade  between  ports  of  the  United  States,  clear- 
ance and  entry  are  not  required,  in  general. 


140  National  Government. 

to  render  navigation  less  dangerous.  The  following  are 
some  of  the  subjects:  providing  for  light-houses,  buoys, 
signal  stations,  and  life-saving  stations  along  the  coast;  im- 
proving harbors;  requiring  vessels  to  take  licensed  pilots 
when  near  the  coast;  prescribing  how  many  passengers  and 
what  provisions  shall  be  carried;  quarantine;*  and  many 
similar  ones. 

10.  Commerce  with.  Indians. — In  granting  to  Congress 
the  power  to  regulate  commercef  "with  the  Indian  tribes," 
it  was  intended  to  lessen,  the  dangers  of  war.  Murders  and 
war  had  been  provoked  by  the  improper  conduct  of  some  of 
the  States.  It  was  believed  that  by  a  uniform  policy  difiB- 
culties  would  be  more  likely  to  be  prevented.  This  was 
more  important  then  than  now,  when  the  number  of 
Indians  has  become  so  insignificant. 


CHAPTER  XXX. 

OTHER   POWERS   RELATING  TO   PEACE. 

1.  Citizens  and  Aliens. — The  general  distinction  between 
them  is  this:  citizens  are  those  born  in  this   country;  J 

*  This  means  a  period  of  time  for  which  vessels  are  detained 
before  entering  a  port,  so  that  they  may  be  examined  to  see  if  there 
is  any  malignant  disease  on  board;  Quarantines  are  required  by  the 
health  laws  of  the  States;  and  b}'-  the  laws  of  Congress  vessels  are  to 
be  subject  to  the  health  laws  of  the  State  at  whose  ports  they  arrive. 

f  Commerce,  in  a  broad  sense,  as  used  in  this  clause  of  the  Con- 
stitution, means  not  onlj^  trade  by  sea  and  land,  but  all  intercourse. 

X  Prior  to  the  Civil  War  white  people  alone  were  citizens  in  the 
Southern  States,  but  now  under  the  14th  Amendmeftt  white  and 
black  stand  on  the  same  basis  (99). 

Children  take  the  citizenship  of  their  parents. 


Legislative  Department.  141 

aliens  are  those  born  in  a  foreign  country,  whether  living 
here  or  in  the  foreign  country.  Both  include  men, 
women,  and  children.  But  after  living  here  a  certain 
time  an  alien  may  become  a  citizen.  Aliens  have  not  all 
the  rights  of  citizens.  They  cannot  vote  (see  p'lge  27).* 
In  many  States  they  have  not  full  power  to  own  real 
estate.  In  general,  they  are  considered  subjects  of  the  na- 
tion from  which  they  come,  and  not  of  this. 

2.  Naturalization. — But  to  deny  foreigners  the  rights  of 
citizens  after  they  shall,  have  acquired  a  fixed  residence 
here,  and  a  knowledge  of  their  civil  and  political  duties, 
would  be  illiberal  and  unjust.  The  process  by  which  an 
alien  may  become  a  citizen  is  called  naturalization.  Con- 
gress has  the  power  to  make  a  uniform  rule  (29).  The 
reason  for  this  is  that  if  it  were  left  to  the  States,  a  person 
having  become  naturalized  in  one  State  might,  on  remov- 
ing into  another,  be  deprived  of  the  rights  of  citizenship 
until  he  should  have  been  naturalized  by  the  laws  of  such 
State.  Besides,  by  the  Constitution  a  citizen  of  any  State 
is  entitled  to  the  privileges  of  a  citizen  in  any  other  State 
(73).  Now,  after  a  person  is  once  naturalized,  he  is  a 
citizen  of  the  United  States  and  also  of  the  State  in  which 
he  resides  at  the  time  (99).  By  removing  to  another  he 
becomes  a  citizen  of  that. 

3.  When  Allowed. — The  laws  of  Congress  prescribe  that 
an  alien  maybe  naturalized  after  living  in  this  country  five 
years.  The  first  step  is  to  declare  on  oath  before  a  court 
that  it  is  his  intention  to  become  a  citizen.     This  declara- 

*  Katuralization  and  the  right  to  vote  are  two  separate  matters, 
which  must  not  be  confused.  Not  all  of  those  who  are  naturalized 
are  given  the  right  to  vote  (e.g.  women  and  children).  Although 
most  States  do  give  foreigners  the  right  to  vote,  when  naturalized, 
gtill  they  need  not;  and  some  States  even  allow  some  aliens  to  vote. 
The  State  regulates  voting,  the  United  States  naturalization. 


142  National  GovernTnent. 

tion  lie  may  make  as  soon  as  lie  arrives,  or  at  any  time. 
After  the  declaration  he  must  wait  two  years.  After  that 
the  court,  if  satisfied  that  he  has  resided  five  years  in  the 
United  States,  and  one  year  in  the  State  in  which  the  court 
is  held,  may  admit  him  as  a  citizen.  He  then,  before  the 
court,  renounces  his  allegiance  to  his  old  country,  and 
swears  to  support  the  Constitution  of  the  United  States. 
But  no  alien  can  be  compelled  to  become  a  citizen  against 
his  will. 

4.  Bankrupt  Laws. — A  hanhrupt  is  an  insolvent  debtor; 
that  is,  a  person  who  is  unable  to  pay  all  his  just  debts.  A 
hanhrupt  law  is  a  law  which,  upon  an  insolvent's  giving  up 
all  his  property  to  his  creditors,  discharges  him  from  the  pay- 
ment of  his  debts.  Such  laws  are  designed  for  the  benefit  of 
honest  and  unfortunate  debtors,  who,  by  having  the  enjoy- 
ment of  their  future  earnings  secured  to  them,  are  encour- 
aged to  engage  anew  in  industrial  pursuits.  The  reason 
the  power  was  given  to  Congress  to  pass  such  laws  (29) 
was  that  if  it  were  left  to  the  States  the  object  could  not  be 
accomplished.  No  state  law  could  release  a  debtor  from 
debts  to  a  creditor  living  out  of  the  State,  nor  from  debts 
contracted  in  another  State.  The  dissimilar  and  conflict- 
ing laws  of  the  different  States,  and  the  entire  want  of 
them  in  others,  had  caused  great  inconvenience.  Impor- 
tant as  such  laws  were  deemed,  there  is  now  (1880)  no 
national  law  on  the  subject.* 

5.  Coinage. — The  coinage  of  the  money  is  in  every 
country  a  prerogative  of  the  government.  Congress  has 
several  powers  with  regard  to  coinage  (30).     No  State  can 

*  Three  sucli  laws  have  been  passed  by  Congress.  Two  of  them 
existed  but  a  year  or  two.  The  third  was  passed  in  1867  and  lasted 
until  1878.  The  reason  for  this  short  duration  was  the  gereral  senti- 
ment that  it  allowed  many  dishonest  debtors  to  procure  a  release 
from  their  debts. 


Legislative  Department  143 

coin  money  (51).  The  object  here,  also,  was  to  make  uni- 
formity throughout  the  country.  Exercising  these  powers 
Congress  has  passed  laws  by  which  we  have  a  uniform  cur- 
rency throughout  the  Nation,  and  the  convenient  decimal 
system  of  dollars  and  cents,  instead  of  the  awkward  system 
of  pounds,  shillings,  and  pence,  which  existed  before  the 
Constitution.  The  value  of  coin  has  been  regulated  in 
different  ways:  such  as,  by  deciding  how  much  metal  (gold 
or  silver)  shall  be  put  in  a  given  coin,  or  what  domestic 
coins  foreign  coins  shall  be  equal  to.  The  place  where 
money*  is  coined  is  called  a  mint.  There  are  several  in  the 
country,  the  principal  one  being  at  Philadelphia. 

6.  Weights  and  Measures. — For  the  convenience  of  trade 
between  the  States,  the  weights  and  measures,  like  the 
coinage,  should  be  the  same  in  all  the  States.  Without 
such  uniformity  commerce  among  the  States  would  meet 
with  very  great  embarrassment.  Yet  Congress  has  never 
exercised  the  power  given  it  on  this  subject  (30).  The 
States  still  have  the  power  to  adopt  their  own  standard,  f 

7.  Post-Office. — The  power  of  Congress  over  the  mail  is 
one  of  the  most  important  it  has  (32).  J     In  every  nation 

*  It  must  be  remembered  that  coin  is  nut  ine  ouiy  money  in  the 
country.  We  have,  besides,  all  the  paper  money  now  in  use  (1880), 
United  States  notes,  national-bank  notes,  and  state-bank  bills.  Only 
coin  and  the  United  States  notes  are  legal  tender,  i.e.  if  a  man  wishes 
to  pay  a  debt  he  must  pay  with  one  of  those  two,  if  the  creditor  in- 
sists upon  it. 

f  The  weights  and  measures  used  throughout  the  States  are,  how- 
ever, substantially  the  same.  In  1886  the  United  States  Government 
sent  to  each  State  a  full  set  of  weights  and  measures,  as  used  in  the 
Custom  House,  and  these  have  been  adopted  by  the  States  as  their 
standards. 

X  A  post-road  is  a  road  over  which  the  mail  is  carried.  All  rail- 
roads are  by  law  made  post-roads,  and  there  are  very  many  others 
besides. 


144  National  Government. 

the  government  assumes  charge  of  the  Post-office.  It  is 
impossible  to  conceive  all  the  difficulties  which  might 
attend  the  exercise  of  this  power  had  it  been  left  to  the 
different  States.  A  uniform  system  of  regulations  is  indis- 
pensable to  efficiency,  and  could  be  secured  only  by  placing 
this  power  in  the  hands  of  Congress. 

8.  Protection  of  Authors  and  Inventors. — This  Congress 
has  power  to  effect  by  granting  copyrights  und patents  (33). 
**  Science  and  useful  arts"  are  promoted  by  new  books  and 
new  inventions.  But  if  every  man  had  the  right  to  print 
and  sell  every  book  or  writing,  without  compensation  to 
the  author,  there  would  be  little  to  encourage  men  of  ability 
to  spend,  as  is  often  done,  years  of  labor  in  preparing  new 
and  useful  works.  Nor  would  men  of  genius  be  likely  to 
spend  their  time  and  money  in  inventing  and  constructing 
expensive  machinery,  if  others  had  an  equal  right  to  make 
and  sell  the  same.  This  power  is  given  to  Congress  for  the 
reason  that  if  the  States  alone  exercised  it,  no  State  could 
punish  infringers  beyond  its  own  limits.  In  pursuance  of 
the  power  here  given,  Congi-ess  has  enacted  the  copyright 
and  patent  laws. 

9.  Copyright. — A  copyright  is  the  sole  right  to  print  and 
sell  a  book,  map,  etc.  It  is  obtained  by  the  author  by  fol- 
lowing a  few  simple  requirements,  the  chief  one  of  which 
is  the  mailing  of  two  copies  as  soon  as  it  is  published  to  the 
Librarian  of  Congress.  This  secures  to  the  author  the  sole 
right  to  print  and  sell  his  work  anywhere  in  the  United 
States  for  twenty-eight  years,  at  the  expiration  of  which 
time  he  may  have  his  right  continued  for  fourteen  years 
longer, 

10.  Patents. — A  patent  is  the  sole  right  to  make,  use,  or 
sell  a  new  invention.  It  is  obtained  by  the  inventor  from 
the  government,  but  there  is  much  more  to  be  done  than 
in  the  case  of  a  copyright.     The  Commissioner  of  Patents 


Legislative  Department,  145 

superintends  the  granting  of  patents.  The  Patent  Office 
is  a  part  of  the  Department  of  the  Interior  (see  page  169). 
To  secure  his  patent  the  inventor  must  send  to  the  Com- 
missioner of  Patents  a  written  description  of  his  invention, 
with  drawings  and  model,  and  specify  the  improvement 
which  he  claims  as  his  own  discovery.  If  the  examiners  do 
not  find  that  the  invention  had  been  before  discovered,  a 
patent  is  issued  therefor,  on  the  payment  of  certain  fees. 
This  secures  to  the  inventor  the  sole  right  to  make,  sell, 
•or  use  his  invention  anywhere  in  the  United  States  for 
seventeen  years.* 

11.  Courts. — Under  the  power  to  establish  inferior  courts 
(34)  Congress  has  established  a  system  of  courts  which  wiU 
be  described  later  (seepage  171). 

12.  Piracy. — Congress  (and  not  the  States)  has  power 
to  define  and  punish  crimes  committed  on  the  high  seas 
(35).  Piracy  is  commonly  defined  to  be  forcible  robbery 
or  depredation  upon  the  high  seas.  But  the  term  felony 
was  not  exactly  defined  by  law,  consequently  its  meaning 
was  not  the  same  in  all  the  States.  It  was  sometimes  ap- 
plied to  capital  offences  only;  at  other  times,  to  all  crimes 
above  misdemeanors.  The  power  to  define  these  offences 
is  given  to  Congress  for  the  sake  of  uniformity,  and  the 
power  to  punish  them,  because  the  States  have  no  jurisdic- 
tion beyond  their  own  limits. 

13.  Offences  against  the  Law  of  Nations. — Nor  were 
these  clearly  defined-.  The  power  to  define  and  punish 
them  is  given  to  Congress  (35),  because  our  citizens  are 

*  In  the  case  of  both  copyrights  and  patents,  the  granting  of  them 
is  not  proof  tliat  the  book  or  invention  is  new.  If  any  one  is  sued 
for  infringement  (i.e.  printing  tlie  book  or  using  the  invention  with- 
out permission  from  the  one  holding  the  copyright  or  patent)  lie  may 
claim  that  the  book  or  the  invention  is  not  new,  and  if  he  proves  it 
the  court  adjudges  the  copyright  or  patent  to  be  void. 


146  National  Government. 

regarded  by  foreign  nations  as  citizens  of  the  United 
States  and  not  as  citizens  of  their  respective  States;  and 
therefore  the  General  Government  alone  is  responsible  to 
foreign  nations  for  injuries  committed  on  the  high  seas  by 
our  citizens. 

14.  District  of  Columbia. — In  1790  this  became  the  seat 
of  government.  Over  it,  and  over  all  the  forts,  arsenals, 
etc.,  belonging  to  the  United  States,  Congress  has  exclusive 
authority*  (42).  This  authority  is  necessary  for  the  pro- 
tection of  the  government.  If  the  seat  of  government  were 
within  the  jurisdiction  of  a  State,  Congress  and  other 
public  officers  would  be  dependent  on  the  state  authority 
for  protection  in  the  discharge  of  their  duties,  and  the 
State  might  refuse  them  protection,  f 

15.  Implied  Powers. — It  is  a  general  rule  that  whore  one 
is  granted  the  power  to  do  a  thing,  it  implies  that  he  shall 
have  power  to  use  all  the  necessary  means  to  accomplish  it. 
The  last  clause  of  section  8  (43)  then  was  unnecessary,  for 
the  granting  of  the  *^  foregoing  powers"  granted  also  the 
power  "  to  make  laws  necessary  and  proper  for  carrying 
them  into  execution."  J     The  reason  the  clause  was  added 

*  So  also  with  regard  to  all  territory  not  included  within  any- 
State  (see  page  180). 

f  This  actually  happened  to  the  Continental  Congress.  It  was 
once,  near  the  close  of  the  Revolution,  treated  with  insult  and  abuse 
while  sitting  at  Philadelphia;  and  the  executive  authority  of  Penn- 
sylvania having  failed  to  afford  protection,  it  adjourned  to  Princeton, 
in  the  State  of  New  Jersey 

X  For  example:  The  power  "to  regulate  commerce"  includes  the 
power  to  cause  the  construction  of  breakwaters  and  light-houses, 
the  removal  of  obstructions  from  navigable  rivers,  and  the  improve- 
ment of  harbors;  for  in  regulating  and  facilitating  commerce  these 
works  and  improvements  are  necessary.  So  the  power  **  to  establish 
post-offices "  implies  the  power  to  punish  persons  for  robbing  the 
mail. 


Legislative  Department.  147 

was  to  satisfy  all  possible  doubt.  Under  this  right  of  im- 
plied powers  Congress  has  passed  laws  which  it  has  been 
diflScult  to  refer  to  their  proper  clauses  in  the  Constitution, 
and  which  have  occasioned  much  discussion;  such  as  laws 
establishing  the  national  banks,  incorporating  railroads, 
purchasing  foreign  territory  (such  as  Louisiana  and  Florida) 
and  making  the  United  States  notes  legal  tender.  In  very 
many  cases  the  laws  passed  under  implied  powers  are  wider 
in  their  scope  and  more  important  than  those  expressly 
authorized. 

16.  Other  Powers. — In  other  parts  of  the  Constitution 
other  legislative  powers  are  ^iven  to  Congress.  They  will 
be  noticed  in  their  order. 


CHAPTER  XXXI. 

POWERS   RELATIlsTG   TO   WAR. 

1.  Declaring  War. — Congress  alone  has  this  right  (36). 
It  is  very  evident  that  a  single  State  ought  not  to  be  allowed 
to  make  war.  The  power  to  declare  it  is  justly  given  to 
the  National  Government,  because  the  people  of  all  the 
States  become  involved  in  its  evils.  In  monarchical  gov- 
ernments this  important  power  is  exercised  by  the  king, 
or  supreme  ruler.  But  here  it  is  entrusted — not  to  the 
President — but  to  the  representatives  of  the  people,  because 
the  people  are  they  who  have  to  bear  the  burdens  of 
war. 

2.  Letters  of  Marque  and  Reprisal — These  are  commis- 
sions issued  by  a  governmen  fc  to  private  persons  authorizing 
them  to  seize  the  property  of  a  foreign  nation  or  its  subjects, 


148  National  Government, 

as  a  reparation  for  some  injury.  *  Congress  has  exclusive 
power  to  grant  them  (36,  51).  A  State  should  not  be 
permitted  to  authorize  its  citizens  to  make  reprisals;  for, 
although  such  authority,  when  granted  in  time  of  peace, 
is  designed  to  enable  the  citizens  of  one  country  to  obtain 
redress  for  injuries  committed  by  those  of  another,  without 
a  resort  to  war,  the  tendency  of  reprisals  is  to  provoke 
rather  than  to  prevent  war;  and  when  granted  in  time  of 
war  it  is  merely  one  means  of  carrying  on  the  war.  In 
both  cases  the  National  Government  alone  should  have  the 
power  to  grant  the  commissions,  as  it  alone  has  the  power 
to  declare  war,  because  the  whole  country  may  become  in- 
volved. The  entire  subject  of  war  is  taken  away  from  the 
States,  and  given  to  the  Nation. 

3.  Captures. — As  a  part  of  its  power  over  war.  Congress 
has  power  to  make  rules  concerning  the  property  cap- 
tured in  time  of  war.  The  general  practice  is  to  distribute 
the  proceeds  of  the  property  among  the  captors  as  a  reward 
for  bravery  and  a  stimulus  to  exertion.  The  property  cap- 
tured is  called  prize.  But  proof  must  be  made  in  a  court 
of  the  United  States  that  the  property  was  taken  from 
the  enemy,  before  it  is  condemned  by  the  court  as  a 
prize. 

4.  Army  and  Navy. — So  also  Congress  has  power  to 
raise,  maintain,  and  make  rules  for  the  government  of  an 


*  They  are  sometimes  called  simply  letters  of  marque,  and  are  often 
issued  in  time  of  war,  and  sometimes  in  time  of  peace.  When  issued, 
it  is  generally  to  the  owners  or  master  of  some  armed  vessel,  which 
then  goes  out  and  captures  the  vessels  and  property  of  the  foreign 
nation  on  the  ocean.     Such  a  vessel  is  called  a  privateer  (see  page  268). 

This  method  of  obtaining  reparation  seems  more  like  retaliation. 
But  many  things  are  allowed  in  war  which  are  not  justifiable  at  other 
times.     Privateering  is  not  as  extensively  practised  as  formerly. 


Legislative  Department.  149 

army  and  navy  (37-40).*  Under  the  Confederation  the 
Congress  could  declare  war,  but  could  not  raise  or  pay  a 
single  soldier  (see  page  94).  A  government  must  have  an 
army,  or  at  least  the  power  to  raise  one.  Without  one  it  is 
virtually  powerless,  for  not  only  must  a  nation  be  ready  to 
fight  foreign  foes,  but  also  occasions  will  arise  when  its 
supremacy  can  be  maintained  against  insurrections  or  re- 
bellions among  its  own  subjects  in  no  other  way.  So  also 
maritime  nations  must  have  a  navy  to  protect  their  com- 
merce. In  ordinary  times  the  United  States  army  and 
navy  are  filled  by  voluntary  enlistments ,  but  when  these  do 
not  furnish  enough  men  Congress  provides  for  a  conscrip- 
tion, called  during  our  late  war  a  draft.  By  this  the  num- 
ber needed  are  chosen  by  lot  from  among  the  citizens,  and 
they  are  compelled  to  go,  or  furnish  a  substitute.  In  order 
that  Congress  shall  not  lose  control  of  the  army  when 
raised,  it  is  provided  that  no  appropriation  shall  be  made 
for  a  longer  period  than  two  years.  It  may,  however,  make 
as  many  successive  appropriations  as  it  sees  fit,  and  they 
are  now  made  every  year  for  such  year. 

6.  Militia. — Congress  also  can  provide  for  calling  out  the 
militia  (40).  It  has  so  provided  by  delegating  the  power 
to  the  President,  to  be  so  exercised  when  he  thinks  the 
necessity  provided  for  by  the  Constitution  has  arisen,  f 


*  The  policy  of  the  country  has  been  to  maintain  a  very  smali 
army  and  navy,  and  undoubtedly  much  of  our  prosperity,  as  com- 
pared with  other  nations,  is  due  to  this.  In  European  nations  not 
only  do  the  people  have  to  bear  the  burden  of  an  immense  standing 
army,  but  in  many  of  them  several  years  of  the  best  part  of  every 
man's  life  must  be  spent  in  service. 

f  Though  the  President  is  Commander-in-Chief  of  the  army, 
navy,  and  militia,  Congress  still  has  practical  control  of  all,  for  be- 
fore they  can  be  paid  Congress  must  raise  the  money  and  appropriate 
it  (40).    In  ordinary  times  this  is  done  every  year. 


150  National  Government, 


EXPRESS  POWEES  OF  CONGEESS. 

[Under  Art.  I.  sec.  8.] 


I.  ORDINARY  PEACE    POWERS. 
Raising  Money; 

1.  By  Levying, 

1.  Direct  Taxes,  )  ||     (1.  Payment  of  Debts, 

2.  Imposts,  or       >•  t  a'S  -j  2.  Common  Defence,  or 
Excises:  jSg.    (  3.  General  Welfare. 


12.  By  Bo 


Borrowing. 

II.  Commerce,  Regulation  or; 

{1.  Foreign, 
2.  Among  States,  and 
3.  With  Indians. 

III.  Nattjralization. 
lY.  Bankruptcy. 

Y.  Coinage; 

( 1.  Coining  Money, 

1 2.  Regulation  of  Value,  of 

1.  Domestic  Coin,  and 

2.  Foreign  Coin. 

YI.  Weights  and  Measures,  Regulation  of. 
^YII.  Post-Office;  Establishment  of 

1.  Post-Offices,  and 

2.  Post-Roads, 


Legislatim  Department.  151 

^  VIII.  Science  and  TJseeul  Arts,  Encouragement  of, 
by  granting 

1.  Copyriglits,  and 

2.  Patents. 

IX.  Inferior  Courts,  Establishment  of. 

X.  Crimes; 

1.  Piracies,  )        r.   -jx  «  . 

2.  Felonies  on  High  Seas,  V  to  -^  ^-  p„^^3,   ^ 

3.  International  Offences, )       \^-  ^"^^^^^^ 

4.  Counterfeiting  ; .to  punish. 

j  1.  U.  S.  Securities,  and 
{  2.  U.  S.  Coin. 

XI.  Territory;  Exclusive  Legislation  over 

Jl.  District  of  Columbia,  and 
2.  Ports,  etc. 

11.  POWERS  RELATING  TO  WAR. 
^I.  Declaration  of  War, 

II.  Letters  of  Marque,  Granting  of, 

III.  Captures,  Rules  concerning, 
^IV.  PoRCEs; 

1.  Army,    )        (1.  Raise, 

9    "Wflvrr      f  to  •<  2.  Maintain,  and 
a.  navy,     )        I  g  ^^^^  j^^j^g  ^^j.^ 

3.  Militia,  to  Provide  for 

'1.  Calling  out,  to 

1.  Execute  Laws, 

2.  Suppress  Insurrections,  or 

3.  Repel  Invasions. 

2.  Organizing,  ) 

3.  Arming,  [•  at  all  times. 

4.  Disciplining,  and  ) 
.  5.  Governing,  when  in  U.  S.  service. 


152  National  Government. 

CHAPTER  XXXII. 

PROHIBITION'S   OH  THE   UNITED   STATES. 

1.  Where  Found. — Section  9  of  Article  I.  names  certain 
subjects  which  Congress  is  forbidden  to  legislate  upon.* 
Most  of  these  form,  exceptions  to  the  powers  granted  in  the 
preceding  section. 

2.  Slave-Trade. — From  an  early  period  slaves  had  been 
imported  into  the  Colonies  from  Africa.  At  the  time  when 
the  Constitution  was  formed,  laws  prohibiting  the  foreign 
slave-trade  had  been  passed  in  most  of  the  States,  but  the 
delegates  from  a  few  States  in  the  Convention  insisted  on 
having  the  privilege  of  importing  slaves  secured.  A 
majority  of  the  Convention  were  in  favor  of  leaving  Con- 
gress free  to  prohibit  the  trade  at  any  time.  But  as  it  was 
doubtful  whether  certain  States  would  in  such  case  accede  to 
the  Constitution,  and  as  it  was  desirable  to  bring  as  many 
States  as  possible  into  the  Union,  it  was  at  length  agreed 
that  the  trade  should  be  left  free  for  twenty  years  to  all  the 
States  choosing  to  continue  it  (44,  79).  Once  more,  a 
compromise,  f 

3.  Habeas  Corpus. — The  nature  of  this  writ  has  been 
heretofore  explained  (see  page  85).  The  presence  of  this 
clause  (45)  here  shows  how  important  the  writ  was  con- 
sidered.    In  England  its  operation  had  at  times  been  sus- 

*  It  must  be  remembered  that  sec.  9  of  Art.  I.  does  not  apply  to 
the  States,  but  only  to  Congress.  The  prohibitions  upon  the  States 
are  found  in  sec.  10.  For  instance,  a  state  legislature  is  not  pro- 
hibited by  the  United  States  Constitution  from  suspending  the  writ 
of  habeas  corpus,  as  far  as  state  offences  are  concerned.  For  this 
reason  provisions  similar  to  those  in  sec.  9  are  generally  found  in 
state  constitutions,  as  to  habeas  corpus,  appropriations,  statements, 
etc. 

f  Congress  did,  however,  in  1808  wholly  prohibit  the  slave-trade. 


Legislative  Department.  153 

pended  for  slight  and  insufficient  reasons.  The  clause 
applies  only  to  United  States  judges.  They  can  grant  the 
writ  only  in  cases  of  violation  of  United  States  laws  (see 
page  173). 

4.  Bill  of  Attainder. — Attainder  in  this  phrase  means 
that  forfeiture  of  property  and  loss  of  all  civil  rights  (among 
them,  the  right  to  inherit  property  or  transmit  it  to  heirs) 
which  a  person  formerly  suffered  who  had  been  condemned 
to  death  for  treason  or  other  crime.  A  hill  of  attainder  is 
an  act  (i.e.  a  law)  of  a  legislature  inflicting  this  punish- 
ment upon  some  particular  person  and  condemning  him  to 
death,  without  a  regular  trial  in  a  court.  Such  laws  are 
inconsistent  with  the  principles  of  republican  govern- 
ment, and  are  therefore  properly  prohibited  to  Con- 
gress (46). 

6.  Ex  post  facto  Law. — This  is  a  law  that  makes  punish- 
able as  a  crime  an  act  which  was  not  criminal  when  done, 
or  that  increases  the  punishment  of  a  crime  after  it  has 
been  committed.*  Such  laws  are  unjust,  and  therefore 
wholly  forbidden  to  Congress  (46). 

6.  Direct  Tax. — What  a  direct  tax  ©r  capitation  tax  is 
has  been  already  described  (see  Chap.  XV.,  sec.  1  and  11). 
A  prior  clause  has  given  the  rule  of  apportionment  of  direct 
taxes  (5).  For  greater  security  it  was  provided  that  no 
direct  tax  should  be  laid  except  in  that  way,  counting  three- 
fifths  of  the  slaves  (47).  But  now  if  direct  taxes  were 
laid  they  would  be  in  proportion  to  true  population. 

7.  Export  Duties. — These  are  entirely  forbidden  to  Con- 
gress (48).  The  reasons  have  been  given  before  (see  page 
135,  sec.  5).  This  clause  forms  an  exception  to  the  one  in 
sec.  8  (26)  which  gives  the  right  to  lay  duties. 

♦  If,  for  example,  one  should  commit  murder  while  the  penalty 
was  imprisonment  for  life,  and  the  legislature  should  then  pass  a 
law,  and  apply  it  to  hi&  case,  making  tho  penalty  death. 


154  National  Goxernment, 

8.  Equality  in  Trade. — ^It  was  the  aim  of  the  Constitu- 
tion to  secure  to  each  State  freedom  and  equality  in  trade. 
For  this  reason  any  preference  of  the  ports  of  one  State 
oyer  those  of  another  is  forbidden  (48).* 

9.  Appropriations. — An  appropriation  is  a  law  providing 
that  a  certain  sum  of  money  in  the  treasury  shall  be  paid 
out  for  a  certain  purpose.  The  Constitution  provides  that 
no  money  shall  be  drawn  out  except  when  so  appropriated 
by  Congress  (49).  This  places  the  public  money  beyond 
the  reach  or  control  of  the  Executive  or  any  other  officer, 
and  secures  it  in  the  hands  of  the  representatives  of  the 
people.  Even  the  President  cannot  draw  his  salary  unless 
Congress  makes  the  appropriation.  In  pursuance  of  this 
provision,  Congress,  at  every  session,  passes  laws  specifying 
the  objects  for  which  money  is  to  be  appropriated. 

10.  Statements. — The  clause  requiring  statements  of  the 
receipts  and  expenditures  to  be  published  makes  Con- 
gress responsible  to  the  people.  Such  statements  are 
published  annually,  and  short  abstracts  are  published 
monthly  (49). 

11.  Titles  of  Nobility,  f — Congress  is  entirely  prohibited 
from  granting  these  (50).     They  would  tend  to  introduce 


*  The  last  part  of  that  clause,  referring  to  entry,  etc.,  may  not  be 
easily  understood.  It  does  not  mean  that  vessels  going  from  one 
State  to  another  shall  not  be  obliged  to  enter,  clear  or  pay  duties  (as 
it  might  be  literally  construed).  There  are  laws  of  Congress  enforc- 
ing these  things  in  certain  cases.  It  means  only  that  when  a  vessel 
is  bound  from  a  certain  State  it  shall  be  obliged  to  clear  only  in  that 
State,  and  when  bound  to  a  certain  State  it  shall  be  obliged  to  enter 
or  pay  duties  only  in  that  State.  The  purpose  was  to  prevent  ves- 
sels from  being  compelled  to  enter,  clear  or  pay  duties  at  ports  from 
which  they  did  not  come  or  to  which  they  were  not  bound.  This 
veiy  hardship  had  been  imposed  upon  American  commerce  before  the 
Revolution  by  England,  who  compelled  American  vessels  sailing  to 
a  foreign  port  to  Srst  go  to  England. 

f  See  page  30,  sec.  6-  ' 


Legislative  Department,  155 


the  distinctions  of  rank  here  that  exist  in  many  other  coun- 
tries, which  the  Constitution  desires  to  prevent.  As  the 
Declaration  of  Independence  says,  "all  men  are  created 
equal." 

12,  Relations  of  Officers  with  Foreign  Sovereigns. — » 
Officers  of  the  United  States  Government  are  forbidden  to 
receive  any  present,  office,  or  title  from  any  foreign  state, 
unless  with  the  consent  of  Congress  (50).  This  is  to  guard 
them  against  foreign  influence. 


CHAPTEK  XXXIII. 

PEOHIBITIONS  ON  THE  STATES. 

1.  Treaties. — Section  10  of  Article  I.  enumerates  certain 
things  which  each  State  is  forbidden  to  do.  The  first  one 
is,  to  make  any  treaty,  alliance,  or  confederation*  (51). 
Another  clause  forbids  a  State  to  make  any  kind  of  agree- 
ment with  another  State  or  with  a  foreign  power  without 
the  consent  of  Congress  (52).  If  the  States,  separately, 
?vere  allowed  to  make  treaties  or  form  alliances  with  foreign 
powers,  the  rights  and  interests  of  one  State  might  be  in- 
jured by  the  treaties  made  by  another.  As  the  States 
united  constitute  but  one  !N"ation,  it  is  obvious  that  the 
power  to  treat  with  other  nations  properly  belongs  to  the 
General  Government. 

2.  Letters  of  Marque. — The  States  are  forbidden  to  issue 
these,  as  by  doing  so  one  State  might,  for  local  reasons, 
direct  the  enmity  of  a  foreign  nation  against  the  whole 
Nation,  and  perhaps  involve  the  whole  country  in  war. 

*  For  the  meaning  of  treaty  see  page  164.  An  alliance  is  a  union 
for  some  common  object.  A  confederation  is  \  broader  word,  signi- 
fying a  closer  union. 


156  National  Government. 

3.  Coinage. — This  is  forbidden  to  each  State.  One  ob- 
ject in  giving  this  power  to  Congress  was  that  the  coinage 
might  be  uniform  (see  page  143),  but  if  each  State  had  the 
power  also,  this  object  might  not  be  attained. 

4.  Bills  of  Credit. — The  States  are  forbidden  to  emit 
them.  Bills  of  credit  are  promises  to  pay  certain  amounts 
of  money,  issued  for  the  purpose  of  being  used  as  money. 
The  purpose  of  the  clause  was  to  prevent  the  future  occur- 
rence of  the  evils  they  had  already  caused.  *  The  United 
States  Treasury  notes  are  bills  of  credit.  Bank  bills  issued 
by  state  or  national  banks  are  not  within  the  prohibi- 
tion. 

6.  Legal  Tender. — The  States  are  forbidden  to  make 
anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts.  Tender,  or,  as  it  is  usually  called,  legal  tender,  means 
that  with  which  a  debt  may  be  paid,  by  law.  f  Some  of 
the  States  had  declared  their  irredeemable  paper  money  a 
lawful  tender.  But  paper  money  and  property  of  all  kinds 
are  continually  liable  to  fluctuation  in  value,  and  might 
subject  those  who  should  be  compelled  to  receive  it  to  great 
inconvenience  and  loss.  Gold  and  silver  are  considered 
more  stable  in  their  value. 

6.  Bill  of  Attainder. — This  is  forbidden  to  the  state 
legislatures  for  the  same  reason  that  it  is  forbidden  to  Con- 
gress (see  page  153,  sec.  4). 

7.  Ex  post  facto  Law. — The  States  are  forbidden  to  pass 
such  laws,  as  they  are  unjust  (see  page  153,  sec.  5). 

8.  Law  Impairing  the  Obligation  of  Contracts.  —  The 

*  Bills  of  credit,  to  a  vast  amount,  were  issued  by  the  States  during 
the  Revolution,  and  for  some  time  thereafter.  This  paper  money, 
having  no  funds  set  apart  to  redeem  it,  became  almost  worthless. 

f  Not  all  money  is  legal  tender.  The  legal  tender  in  this  country 
now  is  gold,  silver,  and  U.  S.  notes  (see  page  143).  The  creditor  may 
take  what  he  chooses  in  payment  of  the  debt,  but  he  cnnnot  be  com- 
pelled to  take  anything  but  le^al  tender. 


Legislative  Department,  157 

passage  of  such  a  law  by  any  state  legislature  is  forbidden. 
Laws  that  would  release  men  from  their  obligations  would 
be  contrary  to  the  principles  of  justice,  and  destroy  all 
security  for  the  rights  of  property.* 

9.  Titles  of  Nobility. — The  granting  of  these  by  any 
State  is  forbidden,  for  the  same  reasons  as  in  the  case  of 
Congress  (see  page  154,  sec.  11). 

10.  Duties. — States  are  forbidden  to  lay  duties  on  im- 
ports or  exports  (52).  The  reason  that  import  duties  are 
not  allowed  is  that  they  may  be  uniform  throughout  the 
country.  This  has  been  explained  before  (page  135).  Ex- 
port duties  are  generally  considered  impolitic,  as  tending 
to  discourage  the  industries  of  a  country. 

11.  Inspection  Duties. — The  exception  allowing  a  State 
to  lay  duties  necessary  to  execute  its  inspection  laws  was 
deemed  proper.  Laws  are  passed  by  the  States  for  the  in- 
spection or  examination  of  flour  and  meat  in  barrels,  leather, 
and  sundry  other  commodities  in  commercial  cities,  to 
ascertain  their  quality  and  quantity,  that  they  may  be 
marked  accordingly.  By  this  means  the  States  are  enabled 
to  improve  the  quality  of  articles  produced  by  the  labor  oi 
the  country,  and  the  articles  are  better  fitted  for  sale,  as  the 
purchaser  is  therefore  guarded  against  deception.  A  small 
tax  is  laid  upon  the  goods  inspected,  to  pay  for  their  in- 
spection.    But,  lest  the  States  should  carry  this  power  so 


*  As  bankrupt  laws  release  debtors  from  the  payment  of  their 
debts,  and  consequently  impair  the  obligation  of  contracts,  the  ques- 
tion has  arisen  whether  the  States  have  power  to  pass  them.  From 
decisions  of  the  Supreme  Court  of  the  United  States,  which  is  the 
highest  judicial  authority,  it  appears  that  a  State  may  not  pass  a 
bankrupt  law  discharging  a  debtor  from  the  obligation  of  a  contract 
made  before  such  law  w^as  passed.  But  it  was  not  to  be  considered 
a  law  impairing  the  obligation  of  a  contract,  if  it  existed  before  the 
contract  was  made;  because  the  parties,  who  are  presumed  to  know 
that  such  law  exists,  may  guard  themselves  against  loss. 


158  National  Oovernment, 


far  as  to  injure  other  States,  these  "  laws  are  to  be  subject 
to  the  revision  and  control  of  Congress." 

12.  Tonnage  Duties. — These  are  duties  laid  upon  y-essels ; 
so  much  per  ton.*  They  are  forbidden  to  States  (unless 
with  the  consent  of  Congi*ess),  as  they  are  a  means  of  regulat- 
ing commerce,  which  is  a  subject  given  entirely  to  Congress. 

13.  War. — We  have  seen  that  war  is  another  subject  of 
which  Congress  is  to  have  complete  control  (Ch.  XXXI.). 
For  this  reason  the  States  are  forbidden  to  keep  troops  or 
ships  of  war  in  time  of  peace,  or  to  engage  in  war,  without 
the  consent  of  Congress. 


PKOHIBITIOlSrS 

pn  Art.  I.  sec.  9  and  10.] 


U: 


I.  ON  THE  UNITED  STATES. 
^1,  On  Congress;  as  to 

I.  Taxes; 

(  1.  Export  Duties, 

\  3.  Direct  taxes,  not  in  proportion  to  census 

II.  Commerce; 

1.  Abolition  of  Slave-Trade  prior  to  1808, 
Preference  of  Ports. 

JII.  Other  Laws; 

1.  Suspension  of  Habeas  Corpus, 

2.  Bill  of  Attainder, 

3.  Ex  post  facto  Law, 

4.  Title  of  Nobility. 

l^II.  On  TT.  S.  Officers; 

1.  Paying  Money  without  Appropriation, 

2.  Receiving  from  Foreign  State,  any 

1.  Present, 

2.  Emolument, 

3.  Office,  or 

4.  Title. 

*  A  vessel's  tonnage  is  not  what  she  weighs,  but  the  number  of 
tons  of  freight  she  can  carry. 


Legislative  Department,  159 


II.  ON  THE  STATES;   AS  TO 

Taxes ; 

1.  Import  Duties, 

2.  Export  Duties, 
8.  Tonnage  Duties. 

II.  Agreements  with  other  States  or  Nations ; 

j  1.  Treaty,  etc., 

\  2.  Any  Agreement 

III.  War; 

1.  Letters  of  Marque, 

2.  Troops,  or  War- vessels, 

3.  Engaging  in  War. 

IV.  Money; 

1.  Coinage, 

2.  Bills  of  Credit, 
8.  Legal  Tender. 

.V.  other  Laws; 

1.  Bill  of  Attainder, 

2.  Ex  post  facto  Law, 

3.  Law  impairing  Contract. 

4.  Title  of  Nobility. 


160  National  Government. 


SECTIOlSr  III. 
Executive  Depaetment. 


CHAPTER  XXXIV. 

PRESIDENT  Al^D   VICE-PRESIDENT  :    ELECTION,    QUALIFICA- 
TIONS,   ETC. 

1.  Executive. — One  of  the  strongest  distinctions  between 
the  present  Union  and  the  Confederation  is  that  now  we 
have  a  full  and  strong  executive  department,  while  under 
the  Confederation  there  was  none  (see  page  94). 

2.  Number. — In  regard  to  the  organization  and  powers 
of  the  executive  department  there  was  great  diversity  of 
opinion  in  the  Constitutional  Convention.  The  three 
principal  points  discussed  were  (1)  whether  it  should  con- 
sist of  one  j)erson  as  chief,  or  more,  (2)  the  term,  and  (3) 
the  mode  of  election.  First:  ought  the  chief  executive 
power  to  be  vested  in  one  person,  or  a  number  of  persons? 
Laws  should  be  executed  with  promptness  and  energy. 
This  is  more  likely  to  be  done  by  one  man  than  by  a  num- 
ber. If  several  were  associated  in  the  exercise  of  this 
power,  disagreement  and  discord  would  be  likely  to  happen, 
and  to  cause  frequent  and  injurious  delays.  For  this 
reason  it  was  decided  to  have  one  President  (53). 

3.  Term. — Second:  as  to  the  term.  It  was  argued  that 
the  term  should  not  be  so  short  as  to  induce  him  to  act 
more  with  a  view  to  his  re-election  than  to  the  public  good, 
nor  so  short  that  he  would  not  feel  some  independence  of 
the  people,  and  could  not  carry  out  his  system  of  public 


Executive  Department,  161 

policy;  nor  so  long  that  he  would  feel  too  independent  of 
the  people.  The  term  of  four  years  was  decided  upon  as 
the  most  likely  to  avoid  all  the  objections  (53).  It  com- 
mences March  4th  next  after  the  election.*  A  new  Con- 
gress is  elected  and  begins  its  term  at  the  same  time  as  each 
successive  Presidential  term. 

4.  Mode  of  Election. — Third:  as  to  the  manner  of  elect- 
ing the  President.  Several  modes  were  proposed  in  the 
Convention,  among  them  these:  by  Congress,  by  the  state 
legislatures,  by  the  people  directly,  and  by  Electors  chosen 
for  the  purpose  in  some  way.  The  last  was  the  one  adopted 
(54).  The  object  was  twofold:  (1)  to  keep  the  legislative 
and  executive  departments  distinct,  f  and  (2)  to  make  cer- 
tain of  such  a  man  being  elected  as  would  be  worthy  of  the 
high  position.  If  Congress  elected  him,  it  would  be  prac- 
tically combining  the  two  departments;  and  on  the  other 
hand,  if  the  people  elected  him  directly,  it  was  thought 
that  they  might  be  led  into  error  through  popular  enthusi- 
asm or  misconception,  and  that  at  the  time  of  an  election 
there  would  be  great  excitement;  but  if  he  was  elected  by 
a  body  of  select  men,  they  would  act  with  more  dslibera- 
tion  and  their  judgment  would  be  probably  correct.  And 
if  they  were  selected  for  that  one  purpose  it  was  thought 
they  would  be  better  fitted  for  it  than  the  state  legislatures 
Would  be. 

5.  Election  of  Electors. — The  Constitution  does  not  pre- 
scribe the  manner  in  which  the  Electors  shall  be  appointed 
or  chosen;  this  is  left  to  the  States.  At  first  no  uniform 
mode  was  adopted  by  the  different  States,  but  at  present 
in  all  the  States  they  are  selected  directly  by  the  people, 

*  The  next  election  now  (1880)  occurs  tliis  year,  and  the  next  term 
commences  March  4th,  1881. 

f  For  this  reason  no  Member  of  Congress  nor  civil  officer  can  b3 
i*n  Elector. 


162  National  Government. 

usually,  by  general  ticket.^  By  a  law  of  Congress,  tlie 
Electors  are  required  to  be  chosen  in  all  the  States  on  the 
same  day,  which  is  the  Tuesday  next  after  the  first  Monday 
of  November. 

6.  Proceedings  of  Electors. — On  the  first  Wednesday  of 
December  the  Electors  meet  in  their  respective  States  and 
vote  for  President  and  Vice-President.  What  follows  is 
amply  described  in  the  Constitution  itself  (Amend.  XII.). 
In  1804  a  change  was  made  in  the  mode  of  electing  the 
Vice-President,  f 

7.  Election  by  the  House. — On  the  second  Wednesday 
in  Eebruary  after  the  election  the  Electoral  votes  are 
counted,  and  if  no  one  has  obtained  a  majority,  the  House 
and  Senate  elect  the  President  and  Vice-President  respec- 
tively. This  is  described  in  the  Constitution  and  need  not 
be  repeated  here  (95).  J 

8.  Present  Practice.— When  the  Constitution  was  framed 
it  was  intended  that  the  Presidential  Electors  should  exer- 
cise their  own  personal  judgment,  and  that  thus  the  Presi- 
dent should  be  selected  by  the  calm  wisdom  of  a  body  of 
men  selected  for  their  fitness  to  perform  such  a  duty.  But 
the  existence  of  political  parties  and  their  action  has  nulli- 
fied the  plan.  Now  the  nominating  conventions  put  for- 
ward the  candidates  for  the  Presidency,  and  the  Electors 
are  afterwards  nominated  and  voted  for  entirely  with  refer- 
ence to  those  candidates,  it  being  known  beforehand  which 
one  of  the  candidates  they  will  vote  for;  and  they  never 
exercise  their  judgment,  but  simply.record  the  vote  of  the 
people.     It  is  unfortunate  that  the  original  plan  could  not 

*  That  is,  every  voter  votes  for  as  many  men  as  the  State  is 
entitled  to  have  Electors. 

f  The  Constitution  itself  shows  what  this  was  (55,  95). 

X  The  President  has  been  elected  by  the  House  twice ;  Jefferson 
in  1801,  and  John  Qumcy  Adams  in  1825. 


Executive  Department.  16B 

have  succeeded,  for  the  present  practice  is  open  to  the  ob- 
jections of  an  election  directly  by  the  people,  which  it  is  in 
effect. 

9.  Qualifications. — These  the  Constitution  specifies  (57). 
It  will  be  noted  that  they  are  higher  than  those  required 
for  a  Senator,  because  the  office  is  so  much  more  important. 
No  length  of  residence  here  by  a  foreigner  will  qualify  him. 

10.  Vacancy. — In  case  of  a  vacancy  in  the  office  of  Pres- 
ident, the  Vice-President  becomes  the  President.*  Under 
the  provision  of  the  Constitution  (58),  Congress  has  en- 
acted that,  when  there  is  neither  President  nor  Vice- 
President,  a  member  of  the  Cabinet  shall,  in  the  following 
order,  act  as  President  :  The  Secretary  of  State,  Secretary 
of  the  Treasury,  Secretary  of  War,  Attorney-General,  Post- 
master-General, Secretary  of  the  Navy,  Secretary  of  the 
Interior. 

11.  Salary. — The  President  has  a  salary,  its  amount 
being  fixed  by  Congress.  Congress  may  increase  or  dimin- 
ish it,  but  not  so  as  to  affect  the  President  in  office  at  the 
time  (59).  If  Congress  could  reduce  his  salary  at  pleasure, 
he  could  never  afford  to  be  independent  of  them.  On  the 
other  hand,  if  it  could  be  increased  during  his  official  term, 
he  might  be  tempted  to  use  undue  influence  to  procure  a 
needless  increase. 


CHAPTEE  XXXV. 

POWERS   AND   DUTIES   OF   THE   PRESIDENT. 

1.  Commander-in-Chief.— The  President  is  commander- 
in-chief  of  the  entire  military  force  of  the  Nation  (61). 

*  The  Vice  President  has  no  duties  to  perform  as  Executive  of 
the  Kation.  He  merely  presides  in  the  Senate.  In  dignity  the  office 
of  President  is  much  higher. 


164  National  Government 

This  power  must  be  given  into  the  hands  of  one  man.  If 
there  were  more  (even  two)  there  might  be  no  firmness  or 
promptitude,  qualities  absolutely  necessary  to  render  any 
army  useful.  The  President  is  the  proper  person,  for  he  is 
the  Executive  of  the  Nation.  But  the  President  does  not 
take  the  field  himself.  The  actual  operations  are  conducted 
by  his  generals  under  his  supervision. 

2.  Reprieves  and  Pardons.* — These  may  be  granted  by 
the  President,  but  only  in  cases  of  convictions  by  the 
United  States  courts  (61).  Over  state  offences  he  has  no 
jurisdiction.  Peculiar  cases  may  arise  where,  although  a 
person  is  adjudged  guilty  of  a  crime,  he  does  not  deserve 
the  punishment  the  law  provides;  as  if,  for  instance,  new 
evidence  should  arise  showing  him  to  be  innocent.  But 
the  pardoning  power  may  be  greatly  abused,  and  some 
claim  that  it  would  be  better  to  take  it  away  altogether. 

3.  Treaties. — A  treaty  is  an  agreement  between  nations, 
and  it  may  be  upon  any  subject:  for  peace,  for  war  against 
some  third  power,  concerning  commerce,  the  mail,  the  re- 
turn of  escaped  criminals,  or  any  other  subject.  The 
power  to  make  them  for  the  United  States  rests  with  the 
President.  But  this  is  so  important  a  duty  that  it  is  not 
entrusted  to  him  alone,  but  two-thirds  of  the  Senate  must 
concur  (62). f 

4.  Ministers. — These  are  officers  sent  to  a  foreign  nation 
to  represent  their  own  nation  there.  In  this  country  they 
are    appointed  by   the  President,   with  the  advice  and 

♦  See  page  46,  sec.  7. 

f  Treaties  are  negotiated ;  that  is,  the  provisions  or  terms  are 
arranged  and  agreed  upon,  by  the  agents  of  the  two  governments; 
and  a  copy  of  the  articles  of  agreement  is  sent  to  each  government 
♦o  be  ratified.  Both  governments  must  ratify,  or  the  treaty  fails. 
Treaties  are  ratified,  on  the  part  of  our  government,  by  the  President 
and  Senate.     This  is  what  is  meant  by  their  making  treaties. 


Executive  Department.  165 

consent  of  the  Senate.  TLey  are  often  called  ambassa- 
dors. Our  government  sends  a  minister  to  each  of  the 
civilized  and  semi-civilized  nations  of  the  world.  They 
reside  abroad  and  transact  any  business  that  our  govern- 
ment may  have  with  the  government  of  the  country  where 
they  are.     They  often  negotiate  treaties.* 

5.  Consuls. — These  the  President  appoints  in  the  same 
way.  Co7isuls  are  agents  of  inferior  grade.  They  reside 
in  foreign  seaports.  Their  business  is  to  aid  their  respec- 
tive governments  in  their  commercial  transactions  with  the 
countries  in  which  they  reside,  and  to  protect  the  rights, 
commerce,  merchants,  and  seamen  of  their  own  nation. 
Hence  much  of  their  business  is  with  masters  of  vessels 
and  with  merchants. 

6.  Judges. — The  President  and  Senate  appoint  also  the 
judges  of  the  Supreme  Court,  and  of  the  Circuit  and  Dis- 
trict courts. 

7.  Other  Appointments. — Thus  we  see  that  the  President 
has  very  important  powers  of  appointment.  Nor  is  he 
under  the  control  of  the  Senate  always,  for  under  the  Con- 
stitution (62)  Congress  has  vested  the  appointment  of 
very  many  inferior  officers  in  him  alone,  or  in  the  Heads  of 
Departments,  who  are  appointed  by  him  and  more  or  less 
under  his  influence.  The  advantage  is  that  a  President  is 
thus  better  able  to  carry  out  his  own  policy  if  he  has  the 
selection  of  those  who  shall  aid  him.      But  the  danger  is 

*  Strictly  our  country  has  never  sent  ambassadors,  but  ministers 
plenipotentiary.  An  ambassador  who  is  intrusted  with  the  ordinary 
business  of  a  minister  at  a  foreign  court,  and  who  lives  there,  is 
called  an  ambassador  in  ordinary.  An  ambassador  extraordinary  is  a 
person  sent  on  a  particular  occasion,  who  returns  as  soon  as  the  busi- 
ness on  which  he  was  sent  is  done.  He  is  sometimes  called  envoy; 
and  when  he  lias  power  to  act  as  he  ma/  deem  expedient,  he  is  called 
^nvoy  plenipotentiary;  the  latter  word  signifying  full  power. 


166  National  Government, 

that  if  we  should  obtain  an  ambitious  or  unprincipled 
President  he  might  use  the  power  of  appointment  simply 
to  reward  those  who  would  advance  his  own  interests,  and 
greatly  to  the  injury  of  the  people.* 

8.  Vacancies. — But  in  those  cases  where  the  Senate  must 
concur  in  appointments,  vacancies  will  often  oc3ur  while 
the  Senate  is  not  in  session.  In  such  cases  the  President 
may  alone  make  temporary  appointments  (63).  Without 
such  a  power  somewhere,  the  public  interests  would  often 
suffer  serious  injury.  When  the  Senate  acts  on  appoint- 
ments it  is  said  to  go  into  executive  session. 

9.  Removals. — Most  of  the  officers,  clerks,  etc.,  in  the 
Civil  Service  f  of  the  United  States  are  appointed  for  no 
particular  term,  but  hold  office  until  the  appointing 
authority  removes  them.  Those  appointed  by  the  Presi- 
dent, or  any  other  officer  alone,  can  be  removed  by  him  or 
such  officer  at  any  time.  AVith  regard  to  those  whose  ap- 
pointments the  Senate  must  concur  in,  it  was  urged  at  first 
by  many  that  the  consent  of  the  Senate  must  also  be  ob- 
tained to  the  removal,  but  this  has  not  been  the  practice. 
Up  to  1867  the  President  exercised  the  power  of  removal 
alone  in  all  cases.     In  that  year  the  *' tenure  of  office  act" 

*  For  some  time  past  the  two  political  parties  have  used  this 
power  to  advance  their  own  interests,  and  when  a  new  party  has 
come  into  power  very  many  of  the  civil  officers  have  been  removed 
without  cause  in  order  that  members  of  that  party  might  be  appointed 
in  their  stead.  The  aim  of  Civil  Service  Reform  is  to  establish  the 
custom  of  retaining  officers,  at  least  of  inferior  rank,  as  long  as  they 
do  their  duty,  and  of  appointing  those  best  fitted  for  the  office,  no 
matter  to  which  party  they  belong.  This  is  the  policy  of  England, 
and  ought  to  be  of  our  country. 

f  The  "Civil  Service"  means  the  body  of  persons  employed  by 
the  United  States,  from  the  Cabinet  down  to  the  lowest  clerks  in  the 
Post-Offlce,  except  the  army  and  navy.  It  includes  now  perhaps 
100,000  persons. 


Executive  Department  167 

was  passed,  requiring  the  consent  of  the  Senate  to  the  re- 
moval of  those  officers  whose  appointment  they  must  concur 
in. 

10.  Message. — At  every  session  the  President  sends  to 
Congress  a  message,  containing  recommendations  of  the 
passage  of  such  measures  as  he  judges  expedient  (64). 
This,  of  course,  gives  little  information,  but  it  serves  to  fix 
the  responsibility  upon  them. 

11.  Convening  Congress. — Besides  the  regular  sessions 
each  year.  Congress  may  be  convened  by  the  President  when 
he  thinks  an  extraordinary  occasion  has  arisen  such  as  to 
render  it  necessary,  but  at  such  times  they  only  act  upon 
the  subjects  he  lays  before  them. 

12.  Reception  of  Foreign  Ministers. — This  is  devolved 
upon  the  President  as  the  proper  person  to  represent  the 
Nation.  It  is  usually  a  merely  formal  matter,  but  may  be 
one  of  great  importamce.  In  case  a  revolution  has  occurred 
in  some  foreign  country  and  a  new  minister  is  sent  here, 
the  President  in  deciding  whom  he  will  receive  must  de- 
cide whether  to  recognize  the  new  or  the  old  government, 
and  this  might  involve  us  in  war. 

13.  Execution  of  the  Laws. — This  is  the  most  important 
and  most  comprehensive  duty  devolved  upon  the  President. 
It  calls  upon  him  to  see  that  above  all  things  obedience  is 
rendered  to  all  the  laws  of  the  Union.  It  is  for  this  pur- 
pose that  he  is  made  commander  of  the  army  and  navy. 
In  1861  President  Lincoln  would  have  disregarded  this  high 
obligation  had  he  refused  to  take  every  means  to  subdue 
those  States  which  had  openly  revolted  from  the  authority 
of  the  Nation. 

By  comparing  this  chapter  with  Chapter  XI.  it  will  be 
seen  how  similar  the  powers  and  duties  of  the  President  are 
to  those  of  a  state  governor;  but  those  of  the  former  are  as 
much  more  important  in  their  exercise  than  those  of  the 


168  National  Gooernment. 

latter,  as  the  Nation  is  greater  than  any  State.  The  ntate 
constitutions  generally  have  been  modelled  on  the  X]  aited 
States  Constitution. 


CHAPTER    XXXVI. 

AUXILIARY  EXECUTIVE  DEPARTMENTS. 

1.  Departments. — The  great  amount  and  variety  of  the 
executive  business  of  the  Nation  require  the  division  of  the 
executive  department  into  several  subordinate  departments, 
and  the  distribution  among  them  of  the  different  kinds  ot 
public  business.  These  departments  are  eight  in  number, 
named  as  follows:  (1)  Department  of  State,  (2)  Department 
of  the  Treasury,  (3)  Department  of  the  Interior,  (4)  Depart- 
ment of  War,  (5)  Department  of  the  Navy,  (6)  Department 
of  Justice,  (7)  Post-Office  Department,  and  (8)  Depart- 
ment of  Agriculture. 

2.  Cabinet. — At  the  head  of  each  of  these  Departments  is 
a  chief  officer.  These  chief  officers,  sometimes  called  Heads 
of  Departments,  are  named  respectively  the  Secretaries  of 
State,  of  the  Treasury,  of  the  Interior,  of  War,  and  of  the 
Navy,  the  Attorney-General,  Postmaster-General  and  Sec- 
retary of  Agriculture,  and  are  appointed  by  the  President 
with  the  consent  of  the  Senate.  Together  they  form  a 
sort  of  council  and  act  as  advisers  of  the  President.  As 
such  they  are  called  the  CaUnet.  Owing  to  this  close  rela- 
tion between  a  President  and  his  Cabinet  it  is  usual  for  the 
Senate  to  confirm  whomever  the  President  selects  for 
cabinet  officers. 

3.  Department  of  State. — This  department  has  charge 
of  all  the  business  of  the  Nation  with  foreign  nations.    The 


Executive  Department.  169 

Secretary  of  State  conducts  all  our  diplomatic  *  correspon- 
dence, being  the  official  organ  of  communication  with  the 
ministers  of  foreign  governments  sent  to  this  country,  and 
with  our  ministers  abroad.  He  is  also  the  custodian  of  the 
seal,  the  laws,  and  other  official  documents  of  the  Nation. 

4.  Department  of  the  Treasury. — To  this  belongs  the 
charge  of  the  finances  of  the  Nation.  It  collects  the 
revenue  from  customs  and  excises,  pays  the  debts  of  the 
Nation,  coins  the  money,  and  takes  charge  of  all  money 
paid  to  the  government.  The  vast  amount  of  business  in 
this  department  requires  a  great  number  of  assistants.  All 
the  custom-houses,  mints,  and  sub-treasuries  form  part  of 
it.  The  building  devoted  to  its  business  in  Washington  is 
one  of  the  largest  there. 

5.  Department  of  the  Interior. — The  chief  subjects  of 
which  this  department  has  charge  are  the  taking  of  the 
census  every  ten  years  (5),  the  management  and  sale  of 
the  puUic  lands,  the  management  of  the  Indians,  the  pay- 
ment oi  pensions,^  and  the  granting  of  patents. 

6.  Department  of  War. — This  department  has  charge 
of  the  procuring  of  supplies  and  equipment  and  other  mat- 
ters relating  to  the  army.  Its  duties  are  of  course  far  more 
important  in  time  of  war  than  in  peace.  The  coast  signal 
service  belongs  to  this  department. 

7.  Department  of  the  Navy. — This  department  has 
charge  of  the  navy,  the  procuring  of  supplies  and  equip- 
ment of  vessels  of  war,  etc. 

*  Diplomacy  is  the  science  of  conducting  negotiations  between 
nations. 

f  A  pension  is  a  yearly  allowance  to  a  person  by  the  government 
for  past  services.  In  this  country  pensions  are  granted  to  those  who 
are  disabled  in  war.  If  a  soldier  is  killed  a  pension  is  granted  to  his 
widow  or  children.  The  amount  of  pensions  now  paid  in  this  ^ount^y 
IS  very  large,  amounting  to  about  $30,000,000  yearly. 


170  National  Government, 


8.  Department  of  Justice. — The  duties  of  the  Attorney- 
General  and  his  assistants  are  to  attend  to  all  suits  in  the 
United  States  courts  in  which  the  United  States  is  inter- 
ested, and  to  give  their  opinions  in  writing  on  legal  ques- 
tions when  requested  by  the  President  or  Heads  of  Depart- 
ments. 

9.  i'ost-Office  Department.— This  has  charge  of  the  mail. 
'AH  post-offices  form  a  part  of  it.  The  Postmaster-General 
establishes  post-offices,  provides  for  carrying  the  mail,  anr^ 
has  general  charge  of  all  matters  connected  with  it. 

10.  Reports. — Each  of  the  Departments  makes  an  annual 
report  to  Congress  of  the  business  transacted  therein  during 
the  year.  These  are  published.  Thus  the  people  are  kept, 
informed  of  what  is  doRi^,  and  valuable  statistics  are  col- 
lected with  regard  to  the  receipts,  expenditures,  and  debt 
of  the  Nation,  the  exports  and  imports,  eta.    ^-~- 


Judicial  Department.  171 


SECTION  IV. 
Judicial  Depaetment. 


CHAPTER  XXXVIL 

NATIOKAL  COURTS  AKD  THEIR  JURISDICTION. 

a.   Courts. 

1.  Necessity  for  National  Judiciary. — We  now  come 
to  the  third  article  of  the  Constitution,  providing  a  national 
judicial  department.  The  Confederation  had  none,  and 
was  thus  dependent  on  the  States.  The  chief  reason  why 
a  national  judiciary  is  necessary  in  addition  to  the  state 
systems  is  that  the  state  judges  might  be  biased  in  favor  of 
their  own  State.  Laws  of  Congress  often  bear  with  greater 
hardship  on  some  States  than  on  others,  and  public  opinion 
in  those  States  upon  whom  the  burden  lay  might  be  so 
strong  in  opposition  that  no  judge  elected  and  supported 
by  those  people  would  sustain  it.  But  if  the  judge  belonged 
to  a  national  system,  and  thus  represented  and  was  sup- 
ported by  the  whole  Nation,  he  would  have  nothing  to  fear 
and  thus  his  decision  would  be  more  impartial.  The  ex- 
perience of  the  Confederation  taught  this. 

2.  Courts. — The  national  judiciary  system  consists  of 
three  grades  of  courts:  the  Supreme  Co^irt,  the  Circuit 
Courts,  and  the  District  Courts.  The  Supreme  Court  is 
the  highest  court  in  the  land,  and  was  established  by  the 
Constitution  itself  (66).     The  others  were  established  bv 


172  National  Government. 

Congress.  The  Supreme  Court  consists  of  nine  judges, 
and  its  jurisdiction  is  almost  wholly  appellate;  that  is,  cases 
are  not  tried  in  it,  but  it  only  hears  appeals  from  the  other 
courts,  and  that  only  in  the  most  important  cases.  It  has 
original  jurisdiction  in  a  few  cases.  Of  the  Circuit  Courts 
there  are  nine  in  the  country.  They  are  next  lower  in 
grade  to  the  Supreme  Court,  to  which  appeals  are  taken 
from  them.  There  are  fifty-eight  District  Courts,  and 
they  are  the  lowest  in  grade.  They  hear  the  smaller  cases, 
and  appeals  are  taken  from  them  to  the  Circuit  Courts. 
The  jurisdiction  of  all  the  courts  is  both  civil  and  criminal.* 

3.  Court  of  Claims.— No  one  has  any  right  to  sue  a  gov- 
ernment. Such  a  right  is  inconsistent  with  sovereignty. 
So,  in  this  country,  no  one  has  a  right  to  sue  the  people 
(they  are  the  government),  for  it  is  the  people  from  whom 
he  gets  any  right,  even  the  right  to  his  own  property  or  his 
life,  and  to  admit  that  any  one  had  a  right  to  force  any- 
thing from  them  would  be  admitting  that  they  were  not 
sovereign.  For  this  reason  no  one  has  a  right  to  sue  the 
United  States,  or  any  State  (94).  But  Congress  has 
established  a  court  called  the  Court  of  Claims,  in  which 
those  having  claims  which  they  think  ought  to  be  paid  by 
the  United  States  may  bring  a  suit  in  the  ordinary  way,  in 
form  against  the  United  States,  and  the  court  decides 
whether  they  should  be  paid.  If  it  is  decided  in  the  claim- 
ant's favor  it  is  so  reported  to  Congress,  and  Congress 
generally  will  make  an  appropriation.  But  Congress  is 
free  to  do  as  it  chooses,  and  there  is  no  way  to  compel  pay- 
ment. Some  States  have  established  similar  courts  of  claims, 
but  though  proceeding  in  legal  methods,  they  perform 
rather  the  functions  of  legislative  committees  than  courts. 

4.  Tenure  of  Office. — By  the  Constitution  the  judge? 

*  For  explanation  of  the  terras  used  in  this  section  see  page  76,. 


Judicial  Department,  173 

hold  oflSce  during  good  behavior  {66).  This  means  until 
removed  on  impeachment  for  bad  behavior,  and  thus  in 
most  cases  it  means  for  life.  In  no  other  department  of 
the  general  government  are  offices  held  for  so  long  a  term. 
The  purpose  is  to  insure  a  correct  and  impartial  adminis- 
tration of  justice  by  making  them  independent.  If  they 
could  be  displaced  at  the  pleasure  of  the  appointing  power, 
or  by  frequent  elections,  they  might  be  tempted  to  conform 
their  opinions  and  decisions  to  the  wishes  of  those  on  whom 
they  were  dependent  for  continuance  in  office.  The  object 
of  the  framers  of  the  Constitution  was  to  remove  them  as  far 
as  possible  from  party  influence. 

5.  Salary. — As  with  the  President,  so  here.  Congress, 
though  it  fixes  the  salaries  of  the  judges,  cannot  diminish 
them  while  in  office.  To  give  Congress  power  over  the 
purse  of  an  officer  is  to  give  it  power  over  his  will. 
Dependence  upon  the  legislature  would  be  as  great  an  evil 
as  dependence  upon  the  appointing  power. 

h.  Jurisdiction, 

6.  In  General. — The  jurisdiction  of  the  United  States 
courts  does  not  extend  to  all  kinds  of  cases,  but  only  to 
such  as  the  Constitution  specifies,  just  as  Congress  has 
power  to  pass  only  such  laws  as  the  Constitution  allows  it 
to.  The  cases  enumerated  in  the  Constitution  (67)  in 
which  the  natipnal  courts  have  jurisdiction  may  be  divided 
into  three  general  classes,  (1)  those  arising  under  the  Con- 
stitution, the  laws  of  Congress,  and  treaties,  (2)  those  affect- 
ing foreigners,  and  (3)  those  between  different  States  or 
the  citizens  of  different  States.* 

*  It  will  be  seen,  therefore,  that  the  great  majority  of  cases  be- 
tween citizens  of  the  same  State  must  be  brought  in  the  state  courts. 
So  also  the  great  majority  of  criminal  cases  are  tried  in  the  state 
courts. 


174  National  Government 

7.  Cases  arising  under  United  States  Laws. — Cases  which 
arise  under  the  Constitution,  laws,  or  treaties  of  tlie  United 
States  may  be  those  where  a  person  is  given  a  right  by  the 
Constitution,  laws,  or  treaties  which  he  does  not  have  by  the 
laws  of  his  State  (as,  for  instance,  a  right  to  sue  an  in- 
fringer of  a  patent  granted  to  him),  or  where  he  violates  a 
law  of  Congress  or  treaty  (as  counterfeiting  coin,  or  doing 
anything  forbidden  by  a  treaty),  or  where  any  question 
arises  as  to  the  meaning  of  the  Constitution,  laws,  or 
treaties  of  the  United  States,  or  as  to  whether  a  law  of 
Congress  is  constitutional  *  or  not.  In  these  cases  it  makes 
no  difference  whether  the  parties  are  citizens  of  the  same 
State  or  not.  The  jurisdiction  is  given  to  the  national 
judiciary  for  two  reasons:  (1)  in  order  that  in  the  inter- 
pretation and  enforcement  of  its  own  laws  it  may  not  be 
dependent  on  the  States,  and  (2)  in  order  that  the  inter- 
pretation may  be  uniform  throughout  the  country.  Were 
it  left  to  the  state  courts  some  States  might  decide  that  a 
law  meant  one  thing  and  other  States  that  it  meant 
another. 

8.  Cases  affecting  Foreigners. — The  decision  of  these 
properly  belongs  to  the  national  courts,  for  the  reason  that 
if  a  foreigner  is  injured  here,  the  Nation,  and  not  the  State, 
is  responsible  to  the  foreigner's  government:  therefore  the 
Nation,  and  not  the  State,  should  redress  the  injury.  And 
where  the  foreigner  is  an  ambassador,  or  other  minister, 
the  Supreme  Court  has  original  jurisdiction  of  the  case 
(68).     This  is  in  order  to  provide  as  certainly  as  possible 

*  A  law  of  Congress  is  unconstitutional  (and  wholly  void)  unless 
the  Constitution  has  given  Congress  the  right  to  pass  it  (see  page  133). 
If,  for  instance,  Congress  should  pass  a  usury  law  (that  is,  a  law 
regulating  the  interest  of  money),  or  a  law  abolishing  capital  punish- 
ment, it  would  be  void,  because  it  has  not  been  given  these  powers 
by  the  Constitution. 


Judicial  Department  175 

against  the  danger  of  injustice  being  done,  for  it  might 
involve  the  country  in  a  dispute,  or  even  war,  with  his 
country.  All  public  ministers  are  treated  with  the  highest 
respect,  for  this  reason.  Admiralty  jurisdiction*  is  also 
given  to  the  national  courts,  for  tlte  reason  that  many 
admiralty  cases  affect  foreigners.  Another  reason  is  that 
admiralty  is  a  part  of  the  regulation  of  commerce,  which 
we  have  seen  is  a  subject  taken  away  from  the  States  and 
given  entirely  to  the  United  States. 

9.  Cases  affecting  different  States,  or  their  Citizens. — 
The  third  class  of  cases  in  which  the  national  courts  have 
jurisdiction  is  where  the  parties  on  the  two  sides,  plaintiff 
and  defendant,  are  either  two  different  States,  or  citizens 
of  different  States.  The  reason  for  this  jurisdiction  is  to 
prevent  dissension  among  the  States.  If  the  decision  of  a 
question  which  affected  two  States  were  left  to  the  courts 
of  either,  the  controversy  instead  of  being  closed  would  be 
intensified.  The  history  of  the  small  German  States  and 
of  the  States  under  the  Confederation  illustrates  this.  But 
now,  there  being  an  impartial  arbiter,  the  United  States, 
the  States  submit  to  the  decision,  f 


*  Admiralty  jurisdiction  is  jurisdiction  of  cases  arising  on  the  sea, 
or  connected  with  vessels;  as,  for  instance,  cases  of  piracy,  of  col- 
lision on  the  sea,  or  claims  for  repairing  a  vessel,  or  contracts  to 
carry  freight  or  passengers.  No  State  has  any  jurisdiction  over  the 
ocean. 

f  It  will  be  noticed  that  the  jurisdiction  in  the  cases  mentioned  in 
this  and  the  preceding  section  depends  upon  the  character  of  the  per- 
sons suing  or  sued,  while  in  those  mentioned  in  section  7  it  depends 
upon  the  character  of  the  case.  When  the  case  is  such  as  to  give 
the  national  courts  jurisdiction  it  makes  no  difference  whether  the 
parties  are  citizens  of  different  States  or  not,  and  when  they  are 
citizens  of  different  States,  or  one  is  a  foreigner,  those  courts  have 
jurisdiction  whether  the  case  is  one  of  those  mentioned  in  section  7 
or  not.    Not  all  the  cases  enumerated  in  sec.  2  of  Art.  Ill  (o7)  have 


176  National  Government. 


CHAPTER  XXXVIII. 

TKEASOI^. 

1.  Why  Defined. — Treason  is  one  of  the  highest  crimes 
that  man  can  commit.  Yet,  such  deep  resentment  and 
alarm  does  it  create  among  the  people,  for  it  is  an  attempt 
to  overthrow  the  established  government,  that  the  tendency 
always  is  to  see  it  in  acts  which  may  be  innocent,  and 
which  at  least  do  not  have  such  a  purpose.  For  this  reason 
the  Constitution  itself  says  what  shall  be  considered  treason, 
and  what  proof  shall  be  necessary  to  establish  it  (70).  It 
must  be  either  making  war  against  the  Nation,  or  adhering 
to  its  enemies.  And  it  is  not  sufficient  that  there  is  an  in- 
tention or  even  a  conspiracy  to  do  these  things,  though 
they  are  highly  reprehensible.  There  must  be  some  overt 
(i.e.  open)  act,  before  it  is  treason. 

2.  Proof. ^The  proof  required  is  more  than  in  the  case 
of  most  crimes.  Generally  one  may  be  convicted,  even 
of  murder,  upon  the  testimony  of  one  witness  directly  to 
the  commission  of  the  crime,  or  even  without  any  direct 
testimony  upon  its  commission,  provided  the  other  cir- 
cumstances proven  point  toward  it.  But  in  treason 
against  the  United  States,  no  matter  what  circumstances 
point  toward  it,  there  must  be  two  witnesses  to  the  same 
act. 

3.  Punishment. — Under  the  authority  given  by  the  Con- 
been  spoken  of  separately  in  the  text.  It  will  be  a  useful  exercise  for 
the  pupil  to  write  down  each  separate  case  mentioned  there,  and  tell 
to  which  one  of  the  three  classes  described  above  it  belongs,  and  why. 
But  he  will  be  apt  to  make  a  mistake  as  to  suits  by  citizens  against 
States,  unless  he  consults  Amendment  XI.  (see  page  188).  A  State 
cannot  be  sued  except  by  another  State, 


Judicial  Department  177 

stitution  (71)  Congress  has  declared  the  punishment  of 
treason  to  be  death,  or,  at  the  discretion  of  the  court,  im- 
prisonment and  fine;  the  imprisonment  to  be  for  not  less 
than  fiye  years  and  the  fine  not  less  than  $10,000.  An 
attainder  of  treason  means  here  judgment  by  a  court.  In 
England  formerly,  when  one  was  adjudged  guilty  of  treason 
all  his  property  was  forfeited  to  the  king,  and  he  could 
neither  inherit  nor  transmit  property  to  heirs.  This  is 
what  is  meant  by  corruption  of  Mood.  Thus  for  a  man's 
treason  his  innocent  relatives  were  punished  with  him. 
But  that  is  not  so  here.  A  law  of  Congress  provides 
that  no  conviction  (of  any  crime  against  the  United 
States)  shall  work  corruption  of  blood  or  any  forfeiture 
of  estate. 

4.  The  Civil  War. — In  this  country  there  were  no  prose- 
cutions for  treason  after  the  War,  even  of  the  leaders. 
They  were,  however,  laid  under  certain  political  disabilities, 
but  even  these  have  now  (1880)  been  almost  entirely  re- 
m<  ved. 

6.  Other  Crimes. — The  great  majority  of  crimes,  such  as 
murde;-,  forgery,  theft,  etc.,  lie  generally  within  the  juris- 
diction Df  the  State.  The  state  laws  describe  them,  and 
the  staiie  courts  punish  them.  The  other  subjects,  beside 
treason,  upon  which  Congress  has  authority  to  define 
offences  and  establish  their  punishment,  and  of  which  the 
national  courts  have  criminal  jurisdiction,  are  chiefly  as 
follows:  All  crimes  committed  on  the  sea,  piracy,  murder, 
theft,  etc. ;  perjury  and  other  judicial  crimes  when  com- 
mitted in  the  7iational  courts;  counterfeiting  United  States 
notes  or  coin;  forgery  of  patents  or  other  United  States 
papers;  robbery  of  tire  mail,  or  other  crimes  connected  with 
the  postal  service;  extortion  by  a  United  States  officer;  the 
holding  of  slaves;  and  preventing  any  one  from  exercis- 
ing his  civil  rights,  by  intimidation  or  other  means. 


178  National  Government. 


SECTIOlSr  Y. 
Miscellaneous  Provisiot^^s. 


OHAPTEE   XXXIX. 

BELATIONS   OF   STATES. 

1.  Records. — Article  IV.  of  the  Constitution  contains  a 
number  of  important  provisions,  most  of  which  affect  the 
relations  of  the  States  to  each  other  and  to  the  General 
Government.  The  first  one  is  in  regard  to  the  effect  which 
the  laws,  records,  and  judgments  of  one  State  shall  have  in 
another,  and  the  provision  is  that  they  shall  have  full  effect 
everywhere  (72).  For  instance,  if  a  person  is  sued  in  New 
York  and  there  is  a  decision  on  the  merits  against  him,  it 
is  decided  once  for  all,  and  it  may  be  enforced  against  him 
wherever  he  goes.  Were  it  not  for  this  clause  States  might 
provide  that  no  matter  how  many  times  a  question  had 
been  tried,  it  must  be  tried  over  again  with  all  the  evidence 
before  they  would  enforce  it.  Congress  has  prescribed  the 
manner  in  which  public  acts  and  records  may  be  proved, 
and  when  proven  they  are  conclusive  as  to  the  things  stated 
in  them. 

2.  Privileges  of  Citizens. — No  State  can  grant  privileges 
to  its  own  citizens,  from  which  the  citizens  of  other  States 
are  excluded  (73).  The  purpose  is  to  put  all  on  an  equal- 
ity everywhere.  Without  such  a  provision,  any  State  might 
deny  to  citizens  of  other  States,  the  right  to  buy  and  hold 
real  estate,  or  to  become  voters  after  living  in  the  State  the 


Miscellaneous  Provisions.  179 

prescribed  time,  or  to  enjoy  equal  privileges  in  trade  or 
business. 

3.  Fugitive  Criminals. — The  officials  of  one  State  have 
no  power  in  another  State  as  officials.  For  instance,  the 
police  or  sheriff  of  New  York  City  have  no  power  to  an-est 
a  murderer  in  Jersey  City.  But  the  Constitution  provides 
against  the  escape  of  criminals  in  this  way  (74).  The 
Governor  of  the  State  from  which  such  person  has  fled, 
sends  a  requisition  to  the  Governor  of  the  State  in  which' 
he  is  found,  demanding  his  delivery  to  the  first  State. 
This  requisition  is  usually  complied  with,  and  yet  cases 
have  occurred  in  which  a  Governor  has  refused  to  deliver 
up  an  accused  person,  and  there  is  no  way  provided  to 
compel  him.  This  seems  to  have  been  an  oversight  on  the 
part  of  the  framers  of  the  Constitution. 

4.  Fugitive  Slaves. — By  the  common  law,  a  slave  escap- 
ing into  a  non-slaveholding  State  became  free.  As  it  was 
presumed  at  the  time  the  Constitution  was  framed  that 
other  Northern  States  would  follow  Massachusetts  in 
abolishing  slavery,  the  Southern  States  wanted  some  provi- 
sion to  enable  them  to  reclaim  their  fugitive  slaves.  The 
Northern  States,  though  opposed  to  this,  yielded  for  the 
sake  of  unity  (75).  Escaped  slaves  were,  under  this  pro- 
vision, returned  to  the  South  up  to  1861.  The  clause  is  of 
course  obsolete  now.* 

5.  New  States. — The  provision  (76)  with  regard  to  the 
admission  of  new  States  into  the  Union  was  deemed  neces- 
sary in  view  of  the  large  extent  of  vacant  lands  within  the 
United  States,  and  of  the  inconvenient  size  of  some  of  the 
States  then  existing.     The  territory  north-west  of  the  Ohio 


*  The  word  "slave"  does  not  appear  in  the  original  Constitution. 
The  framers  knew  that  it  would  be  a  blot  upon  the  Constitution  of  a 
free  country. 


180  National  Government. 

Riyer  had  been  ceded'  to  the  General  Government  by  the 
States  claiming  the  same.  South  of  the  Ohio  River  also 
was  a  large  tract,  principally  unsettled,  within  the  char- 
tered limits  of  Virginia,  North  Carolina,  and  Georgia,  ex- 
tending west  to  the  Mississippi.  These  two  tracts  it  was 
presumed  would  soon  become  so  thickly  populated  as  to 
require  separate  governments.  Since  that  time  vast  tracts 
have  been  acquired  from  France,  Spain,  Texas,  and  Mexico. 
From  all  these  tracts  twenty-five  new  States  have  been 
formed  and  admitted  into  the  Union.  When  formed  from 
the  terdtory  of  the  United  States  the  consent  of  Congress 
only  is  required,  but  when  formed  from  the  territory  of 
another  State  the  consent  of  that  State  must  also  be  ob- 
tained. * 

6.  United  States  Territory. — Congress  has  complete 
power  over  the  territory  not  organized  into  States  (77). 
It  establishes  territorial  governments,  and  these  carry  on  all 
the  ordinary  governmental  duties,  but  they  are  subject  to 
the  control  of  Congress.  The  clause  with  regard  to  the 
claims  of  States  has  no  effect  at  the  present  day. 

7.  Protection  by  United  States. — The  United  States 
must  always  see  to  it  that  the  state  governments  are  repub- 
lican in  form  (78).  The  object  is  to  perpetuate  republican 
institutions.  If  some  large  State  should  establish  a  mon- 
archy, it  might  in  time  engulf  smaller  ones,  and  in  the  end 
destroy  the  Constitution.  Its  policy  would  be  in  opposition 
to  all  republican  institutions.  So,  if  a  State  is  in  danger 
from  invasion,  or  insurrection,  it  may  call  on  the  Nation 
for  assistance. 

*  After  the  late  war  Congress  declared  the  Southern  States  to  have 
no  lawful  governments,  and  placed  them  under  temporary  military 
governments.  In  time  they  adopted  new  constitutions,  and  were  re- 
admitted to  the  Union  by  Congress. 


Miscellaneous  Provisions.  181 


CHAPTER    XL. 
amendment:  debt:  supkemacy:  oath:  test:  eatifica- 

TIOK. 

1.  Reason  for  Amendment. — Article  Y.  describes  the 
manner  in  which  the  Constitution  may  be  amended  (79). 
As  the  best  human  government  is  imperfect,  and  as  all  the 
future  wants  and  necessities  of  a  people  cannot  be  foreseen 
and  provided  for,  it  is  obvious  that  every  constitution 
should  contain  some  provision  for  its  amendment. 

2.  Mode  of  Amendment. — This  is  described  in  the  Con- 
stitution (79).  If  amendments  could  be  made  whenever 
desired  by  a  bare  majority  of  the  States,  the  strength  and 
efficiency  of  the  Constitution  might  be  greatly  impaired  by 
frequent  alterations.  It  is  therefore  wisely  provided  that 
a  mere  proposition  to  amend  cannot  be  made  except  by  a 
majority  of  at  least  two-thirds  of  Congress,  or  of  the  legis- 
latures of  at  least  two-thirds  of  the  States;  and  that  such 
proposition  must  be  ratified  by  a"  still  larger  majority 
(three-fourths)  of  the  States.  It  was  thought  better  to* 
submit  occasionally  to  some  temporary  inconvenience  than 
to  indulge  in  frequent  amendments.. 

3.  Public  Debt. — The  clause  (80)  which  adopts  the 
prior  debts  of  the  country  was  intended  to  allay  the  fears 
of  public  creditors,  who  apprehended  that  a  change  in  the 
government  would  release  the  Nation  from  its  obligations. 
But  their  fears  were  probably  groundless,  for  one  purpose 
in  changing  the  government  was  to  provide  a  way  to  pay 
those  debts. 

4.  Supremacy. — The  next  clause  (81)  declares  that  the 
Constitution,  the  treaties  and  the  laws  of  Congress  shall 
prevail  over  any  state  law  or  constitution.    This  is  the 


182  National  Government. 

clause  giving  efi&cacy  to  the  whole  Constitution.  If  any 
State  could  nullify  the  national  law,  nothing  would  be 
gained  by  the  Union.  Now,  when  a  state  law  or  state  con- 
stitution is  passed  contrary  to  the  law  of  the  Nation  every 
one  must  consider  it  void,  and  the  state  judges  must  declare 
it  so. 

h  Oath  of  Allegiance. — All  members  of  all  state  and 
national,  legislative,  executive,  and  judicial  departments 
are  required  on  taking  office  to  take  the  oath  of  allegiance? 
i.e.  to  support  the  Constitution  of  the  United  States  (82). 
Binding  the  conscience  of  public  officers  by  oath  or  solemn 
affirmation  has  ever  been  considered  necessary  to  secure  a 
faithful  performance  of  their  duties.  They  are  generally 
required  to  swear  not  only  to  support  the  Constitution,  but 
also  to  discharge  the  duties  of  their  offices  to  the  best  of 
their  ability. 

6.  Test  Oath. — In  the  same  clause,  test  (often  called  test 
oath)  means  m\  oath  or  a  declaration  in  favor  of  or  against 
certain  religious  opinions,  as  a  qualification  for  office. 
In  England,  all  officers,  civil  and  military,  were  formerly 
obliged  to  make  a  declaration  against  transubstantiation, 
and  to  assent  to  the  doctrines  and  conform  to  the  rules  of 
the  established  church.  The  object  of  forbidding  it  here 
was  to  secure  to  every  citizen  the  full  enjoyment  of  religious 
liberty.  But  this  clause  does  not  bind  the  States.  They 
can  provide  tests,  but  usually  they  have  similar  clauses  in 
their  constitutions. 

7.  Eatification. — By  the  Constitution  (83)  nine  States 
were  to  ratify  it  before  it  had  binding  effect  in  any.  The 
immediate  ratification  of  the  Constitution  by  all  the  States 
was  hardly  to  be  expected;  a  unanimous  ratification,  there- 
fore, was  not  required.  But  a  Union  of  less  than  nine 
States  was  deemed  inexpedient.  The  framers  concluded 
their  labors  on  the  17%  of  September,  1787;  and  in  July, 


Miscellaneous  Promsions,  183 

1788,  the  ratification  of  New  Hampshire,  the  ninth  State, 
was  received  by  Congress.* 

8.  Commencement  of  Government. — Thus  in  July,  1788, 
the  government  had  begun.  During  1788  and  the  early 
part  of  1789,  Senators,  Representatives,  and  Presidential 
Electors  were  chosen  by  the  States.  In  February,  1789, 
General  Washington  was  elected  President  by  the  Electors, 
and  was  inaugurated  April  30th  following,  when  the  1st 
Constitutional  Congress  assembled.  Thus  we  see  that  our 
government  is  not  yet  a  century  old. 


CHAPTEU  XLL 

THE  FIRST  TWELVE  AMENDMENTS. 

1.  In  General. — It  is  remarkable  that  during  so  long  a 
period  the  Constitution  has  received  so  few  changes.  Up 
to  1865,  though  twelve  amendments  had  been  added,  only 
the  last  two  of  them  had  made  any  alteration  in  the  origi- 
nal provisions.  This  proves  the  wisdom  and  skill  of  the 
patriots  who  framed  it,  to  whom  we  should  be  ever  duly 
grateful  for  having  furnished  our  country  with  so  admir- 
able a  bulwark  of  liberty. 

2.  Bill  of  Rights. — This  is  a  name  given  to  the  first  ten 
amendments,  because   they  contain  a   list  of  the  rights 

*  The  Constitution  could  not  become  binding  on  any  State  except 
by  its  own  ratification,  for  the  State  was  sovereign.  But  with 
amendments  it  is  different.  When  accepted  by  three-fourths  they 
are  binding  on  all.  They  have  given  up  their  sovereignty  to  this 
extent.  By  accepting  the  Constitution  at  first  each  State  agreed  that 
amendments  might  be  made  binding  ia  that  way,  even  against  ^heir 
consent. 


184  National  Government, 

deemed  most  important  to  the  liberty  of  the  people.  These 
amendments  do  not  change  any  original  provision  of  the 
Constitution.  They  act  merely  as  restrictions  and  limita- 
tions  upon  the  powers  of  Congress,  and  were  deemed  un- 
necessary by  those  who  framed  the  Constitution,  for  the 
reason  that  those  rights  were  so  generally  acknowledged, 
and  that  the  powers  of  Congress  were  limited  to  those 
expressly  granted  to  it.  But  as  several  of  the  state  conven- 
tions had,  at  the  time  of  adopting  the  Constitution,  ex- 
pressed a  desire  that  declarations  and  guaranties  of  certain 
rights  should  be  added,  in  order  to  prevent  misconstruction 
and  abuse,  the  first  Congress,  at  its  first  session,  proposed 
twelve  amendments,  ten  of  which  were  ratified  by  the 
requisite  number  of  States. 

3.  Its  Purpose. — As  long  as  popular  liberty  lasted  suffi- 
cient to  maintain  any  part  of  the  Constitution  it  is  not 
probable  that  any  of  these  rights  would  have  been  violated, 
even  had  they  remained  unexpressed.  And  yet  it  was  of 
value  to  express  them.  They  are  thus  kept  in  the  mind  ol 
all,  serving  as  reminders,  both  to  the  ambitious  man  who  in 
his  power  grows  neglectful  of  the  people's  rights,  and  to 
the  people  themselves,  who  sometimes,  through  excitement 
and  sudden  indignation,  are  inclined  to  forget  the  rights 
they  have  guaranteed  to  every  one.  It  is  important  to 
remember  that  the  first  twelve  amendments  affect  only 
Congress  and  the  national  courts,  not  the  state  legislatures. 
For  this  reason  similar  provisions  are  often  inserted  in  state 
constitutions,  to  bind  the  state  legislatures  and  courts.  We 
will  refer  briefly  to  these  amendments  in  their  order. 

4.  Religious  Freedom. — The  object  of  the  1st  Amend- 
ment was  to  prevent  the  National  Government  from 
abridging  religious  freedom  in  any  degree  (84,  82).  In 
England,  though  all  Avere  free  to  worship  as  they  chose^ 
yet  there  was  an  established  church,  supported  by  ihe  gov' 


Miscellaneous  Provisions.  185 

ernment.  Here  it  was  thought  best  not  only  to  have  perfect 
liberty  in  religion,  but  also  to  have  the  Church  and  State 
entirely  separate. 

5.  Freedom  of  Speech  and  of  the  Press. — These  have  been 
before  defined  (page  IG).  Congress  is  forbidden  to  pass 
any  law  abridging  them  (84).  The  object  of  this  provision 
was  not  to  allow  one  to  go  unpunished  who  uttered  slander 
or  published  libel.  It  was  intended  to  prevent  all  use  of 
those  means  which  in  former  times  had  been  used  to  repress 
the  people,  by  forbidding  them  to  speak  or  write  on  certain 
subjects  unless  licensed  by  the  government  beforehand. 
At  one  time  it  was  the  law  in  certain  countries  that  even 
the  Bible  should  not  be  printed  except  in  a  certain  lan- 
guage, which  the  people  did  not  understand.  So,  also, 
governments  would  require  all  books  to  be  licensed  before 
they  could  be  printed,  and  would  forbid  the  utterance  of 
any  criticism,  no  matter  how  just  or  honest,  against  them 
or  their  officers. 

6.  Right  to  Assemble. — So,  too,  Congress  is  forbidden 
to  pass  any  law  abridging  the  right  of  the  people  to  assem- 
ble and  present  petitions  to  the  government  (84).  Under 
pretense  of  preventing  insurrection  governments  have  at 
times  denied  the  people  this  right. 

7.  Right  to  Keep  Arms. — This  means  the  right  of  every 
one  to  own  and  use,  in  a  peaceful  manner,  warlike  weapons; 
Congress  is  forbidden  to  pa.ss  any  law  infringing  the  right 
(85).  It  was  thought  that  without  it,  ambitious  men 
might,  by  the  aid  of  the  regular  army,  overthrow  the  liber- 
ties of  the  people  and  usurp  the  powers  of  government. 

8.  Quartering  of  Soldiers  in  Private  Houses. — The  3d 
Amendment  arose  from  a  remembrance  of  past  experience 
(86).  Among  the  grievances  enumerated  in  the  Declara- 
tion of  Independence  was  one  ^'^  for  quartering  large  bodies 
of  armed  troops"  among  the  people  of  the  Colonies. 


186  National  Government. 

9.  Searches  and  Seizures. — K  search-warrant  is  a  paper 
issued  by  a  court  directing  a  person's  premises  to  be 
searched,  because  it  is  suspected  there  is  stolen  property 
there  or  property  subject  to  duty.  A  seizure  is  the  taking 
of  such  property,  or  the  arrest  of  the  person,  by  the  officer. 
In  the  early  times  of  English  history  these  had  been  con- 
verted into  instruments  of  tyranny.  Search-warrants  had 
been  sometimes  granted  when  no  accusation  had  been  made, 
and  in  blank,  so  that  by  filling  out  the  blank  the  officer 
could  search  any  house  he  chose.  The  4th  Amendment 
forbids  Congress  to  pass  any  law  authorizing  warrants  to 
issue,  except  when  good  cause  is  shown,  and  supported 
by  oath  (87). 

10.  Criminal  ^Proceedings. — The  object  of  most  of  the 
provisions  of  the  5th  and  6th  Amendments  is  the  protection 
of  one  accused  of  crime.  Popular  opinion  is  generally 
hasty  in  cases  of  crime,  and  the  rights  named  in  these 
amendments,  most  of  which  are  easily  understood,*  are 
such  as  had  been  found  necessary  in  the  history  of  justice 
in  England  to  save  innocent  persons  from  punishment. 
By  them  Congress  is  forbidden  to  pass  any  law  infringing 
these  rights  (88,  89).  So  important  was  the  trial  by  jury 
in  criminal  cases  considered  that  it  had  been  inserted  in  the 
body  of  the  Constitution  (69). 

11.  Private  Property. — Every  government  of  unlimited 
powers  has  the  right  to  take  the  private  property  of  any 
person,  for  some  public  use,  and  it  may  be  done  even  with- 
out compensation.  This  is  called  the  right  of  eminent 
domain.  But  even  in  those  cases  where  Congress  has  this 
right,  the  5th  Amendment  forbids  its  exercise  without  just 
compensation  being  paid  the  private  owner  (88). 


*  In  the  5th  Amendment  "twice  put  in  jeopardy''  means  tried 
again  aftei  having  been  once  acquitted. 


Miscellaneous  Promsions.  187 

12.  Trial  by  Jury  in  Civil  Cases. — We  have  seen  that  the 
jury  trial  is  secured  in  criminal  cases  (69).  The  7th 
Amendment  requires  it  in  civil  cases*  also  (90).  Both 
these  provisions  refer  only  to  cases  in  United  States  courts. 
The  7th  Amendment  also  provides  what  the  effect  of  a 
jury's  verdict  shall  be.  By  the  rules  of  the  common  law 
when  a  jury  had  rendered  a  decision  upon  a  question  of 
fact  upon  which  some  witnesses  had  testified  in  one  way 
and  others  in  another,  that  question  could  not  be  re-exam- 
ined in  a  higher  court.  After  the  passage  of  the  Constitu- 
tion it  was  thought  that  the  clause  which  gives  the  Supreme 
Court  appellate  jurisdiction  both  as  to  law  and  fact  (68) 
might  give  it  power  to  overthrow  the  verdict  of  a  jury,  and 
therefore  this  amendment  was  added.  Thus  we  see  how 
carefully  the  Constitution  protects  the  security,  liberty, 
and  property  of  the  people. 

13.  Excessive  Bail. — Bail  has  been  described  (page  84). 
But  it  will  be  seen  that  the  amount  of  the  bond  might  be 
fixed  so  high  as  to  prevent  persons  accused  of  crime  from 
procuring  the  necessary  sureties;  whereby  innocent  persons 
might  be  subjected  to  long  imprisonment  before  the  time 
of  trial.  To  prevent  this  in  the  United  States  courts  is 
the  object  of  the  8th  Amendment.  So,  also,  the  degree  of 
punishment  is  often  left  to  the  discretion  of  the  court, 
as  in  the  case  of  treason,  where  any  amount  of  fine  over 
110,000  may  be  imposed.  This  amendment  serves  as  a 
safeguard  against  excess  (91). 

14.  Eights  of  People. — There  were  those  who  feared 
that,  because  the  Constitution  mentioned  certain  rights  as 
belonging  to  the  people,  those  not  mentioned  might  be 

*  The  amendment  says  "  suits  at  common  law."  These  are  dis- 
tinguished from  suits  in  equity  or  admiralty.  It  is  unnecessary  to 
give  the  meanings  of  these  terms  here.  "  Common. law  suits"  include 
aiui'ge  majority  of  all  civil  cases. 


188  National  Government, 

considered  as  having  been  surrendered  to  the  General 
Government,  or  as  having  never  existed.  To  prevent  such 
possible  misconstruction  was  the  object  of  the  9th  Amend- 
ment (92). 

15.  Powers  not  Delegated.— So,  also,  the  10th  Amend- 
ment was  strictly  unnecessary,  for  it  is  self-evident  that 
what  one  has  and  does  not  give  away  he  still  retains  (see 
page  133).  But  many  were  fearful  that  the  central  govern- 
ment might  absorb  the  powers  rightfully  belonging  to  the 
States,  and  this  was  inserted  to  prevent  such  abuse  (93). 

16.  Suits  against  States. — No  state  court  can  entertain 
any  suit  against  a  State.  The  11th  Amendment  forbids 
the  United  States  courts  to  entertain  them  (except  by  one 
State  against  another)  (94).  During  the  Revolution  the 
States  had  issued  bills  of  credit  which  had  not  been  paid. 
After  the  adoption  of  the  Constitution  suits  were  brought 
against  some  of  the  States  by  private  persons  to  enforce 
payment  of  these  bills  of  credit,  and  the  Supreme  Court 
decided  that  under  the  judicial  clause  (67)  this  could  be 
done.  It  was  in  consequence  of  this  decision  that  the 
amendment  was  passed.  Now  there  is  no  way  for  a  private 
person  to  sue  a  State  in  any  court.  It  is  thought  best  to 
leave  a  State  free  to  settle  its  obligations  in  its  own  way 
and  in  its  own  time. 

17.  Election  of  President. — This  is  the  subject  of  the 
12th  Amendment  (95,  96),  and  has  been  elsewhere  treated 
(page  160).  This  amendment  was  adopted  in  1804.  Under 
the  plan  first  adopted  the  chief  opponent  of  the  President 
became  the  Vice-President,  and  as  the  country  had  become 
divided  into  two  great  opposing  parties,  they  would  natu- 
rally belong  each  to  one  of  those.  Now  the  Vice-President 
will  usually  belong  to  the  same  party  as  the  President. 
Many  have  doubted  the  wisdom  of  this  change. 


Miscellaneous  Provisions.  189 

CHAPTER  XLIL 
THE  13th,  14th,  akd  15th  amendments. 

1.  In.  General — These  three  amendments  were  the 
logical  political  result  of  the  Civil  War.  Its  ultimate 
cause  was  negro  slavery;  its  final  result,  the  raising  of  the 
negro  to  an  equality  before  the  law  with  the  white  man. 
These  amendments  differ  from  the  others  in  this  respect, 
that  they  are  binding  on  the  States  as  well  as  on  the 
National  Government.     The  States  are  named  in  them. 

2.  Slavery. — In  1863  President  Lincoln  had  issued  the 
Emancipation  Proclamation.  Whether  this  had  any  legal 
effect  or  not,  the  adoption  of  the  13th  Amendment  in  1865 
did  abolish  slavery  throughout  the  country  (98). 

3.  Civil  Rights. — But  it  is  evident  that  a  person,  though 
not  a  slave,  may  not  have  all  the  civil  rights  of  others,  as 
the  right  to  acquire,  hold,  or  sell  property,  to  engage  in 
trade,  to  live  where  he  pleases^  etc.  The  slaves,  emerging 
from  slavery,  had  no  civil  rightiij.  But  by  the  14th  Amend- 
ment they  are  made  citizens  and  all  civil  rights  bestowed 
upon  them  (99).  This  was  the  second  step  in  the  elevation 
of  the  negro. 

4.  Apportionment  of  Representatives. — Thus  4,000,000 
people  were  added  to  the  number  of  citizens  in  the  United 
States,  and  they  should  be  represented  in  the  House. 
Therefore  the  total  population  was  made  the  basis  of  repre- 
sentation. But  it  was  anticipated  that  the  Southern  States 
might  not  give  the  negro  the  right  to  vote,  and  thus  he 
would  be  deprived  of  his  representation  in  the  House, 
while  the  white  population  of  the  South  would  derive  all 
the  gain  from  the  increased  representation,  and  therefore 
it  was  provided  that  whenever  any  State  denied  the  suffrage 


190  National  Government. 

to  any  male  citizens  of  the  United  States,  its  Representa- 
tives should  be  proportionately  decreased  in  number  (100). 

5.  Political  Disabilities. — We  have  seen  that  all  officers 
of  any  State  or  the  United  States  were  required  (82)  to 
take  an  oath  to  support  the  Constitution.  The  North  con- 
sidered that  engaging  in  war  against  the  National  Govern- 
ment was  attempting  to  subvert  the  Constitution,  and 
therefore  a  breach  of  that  oath.  Therefore  it  was  thought 
best  to  deprive  such  as  had  taken  the  oath  and  afterward 
engaged  in  war  against  the  Union  of  the  right  to  hold 
'office  (101).  But  Congress  was  allowed  to  remove 
the  disability,  and  has  done  so  in  case  of  all  but  a  very 
few. 

6.  National  Debt. — The  14th  Amendment  also  recognizes 
and  declares  the  validity  of  the  national  debt,  but  forbids 
the  payment  of  any  debt  incurred  in  aid  of  rebellion,  or 
any  claim  for  the  emancipation  of  the  slaves  (102).  The 
South  had  incurred  a  large  debt  in  the  war,  which  was 
thus  made  void. 

7.  Right  of  Suffrage. — But  though  the  colored  race  had 
all  the  civil  rights,  it  had  not  as  yet  the  right  to  vote.  We 
have  seen  that  the  qualifications  of  voters  is  a  matter 
belonging  to  the  State  (pages  26,  141,  note).  But  by  the 
15tli  Amendment  the  State  is  forbidden  to  deny  the  right 
of  suffrage  to  any  one  on  account  of  his  "  race,  color,  or 
previous  condition  of  servitude"  (103).  Thus  the  third 
and  final  step  was  taken  in  the  constitutional  changes,  by 
which  the  black  man  was  raised  to  a  political  equality  with 
his  fellow-man. 

8.  Final. — We  have  now  completed  our  review  of  the 
National  Government.  The  system  established  by  the 
Constitution  is  peculiar,  and  is  not  necessarily  suited  to 
other  countries.  But  as  we  study  the  Constitution  our 
admiration  for  it  should  grow.     The  marvellous  prosperity 


Remew  Questions.  191 

of  the  country,  commercial  and  political,  up  to  1860, 
proved  how  well  suited  it  was  to  our  necessities,  and  the 
history  of  the  four  years  between  1860  and  1865  has  shown 
how  severe  a  shock  it  may  stand,  for  it  is  well  grounded  in 
the  love  of  the  people. 


EEYIEW  QUESTIONS. 


The   National    Government 


Origin  and  Nature. 

1.  How  was  this  country  governed  prior  to  the  Revolution? 

2.  State  tlie  causes  of  the  Revolution. 

3.  State  the  political  effect  upon  the  Colonies  of  the  Declaration  of 

Independence. 

4.  When  was  the  Confederation  formed?    How  long  did  it  last? 

State  its  principal  defects. 

5.  State  when  the  Union  was  formed.     Its  fundamental  difference 

from  the  Confederation.     The  chief  differences  in  detail. 

6.  What  is  the  difference  between  a  Confederacy  and  a  Nation  ? 

7.  Give  some  instances  showing  the  partial  retention  of  the  federa- 

tive principle  in  the  National  Government. 

Legialatim  Department. 

8.  Name  the  six  objects  of  the  Constitution  stated  in  the  preamble. 

9.  How  many  members  are  there  in  the  House  of  Representatives? 

By  whom  elected?  For  what  term?  How  apportioned 
among  the  States  at  first?  How  apportioned  now?  Qualifica- 
tions? 

10.  Answer  the  same  questions  as  to  the  Senate. 

11.  What  is  the  object  of  two  legislative  houses? 


192  Remew  Questions. 


12.  Is  the  Senate  or  House  of  the  higher  dignity?    Why? 

13.  How  often  does  Congress  meet?    When?    Define  "A  Congress." 

14.  By  whom  is  impeachment  made?    By  whom  tried? 

15.  State  the  powers  of  each  House  as  to  its  members,  officers, 

quorum,  adjournment,  rules,  journal,  yeas  and  nays. 

16.  What  privilege  have  members  of  Congress  as  to  arrest ?  'Why? 

As  to  liberty  of  speech?    Why? 

17.  What  bills  may  originate  in  the  House?    In  the  Senate? 

18.  State  the  reason  for  the  provision  as  to  revenue  bills. 

19.  Name  all  the  ways  in  which  a  bill,  having  passed  both  Houses, 

may  become  a  law  ? 

20.  State  the  fundamental  difference  between  Congress  and  a  state 

legislature  as  to  the  origin  and  extent  of  their  powers. 

21.  Name  the  subjects  on  which  Congress  may  legislate. 

22.  What  taxes  may  Congress  lay?    For  what  purposes? 

23.  From  what  source  does  most  of  the  national  revenue  now  come? 

24.  Why  has  Congress  the  power  to  regulate  commerce?    In  what 

ways  is  it  exercised?    Explain  retaliation  duties. 

25.  What  is  Protection?    Free  Trade?     State  the  chief  argument 

for  each.     Which  is  the  policy  of  the  United  States? 

26.  What  is  Registry  of  vessels?  Clearance  and  Entry? 

27.  What  is  a  citizen?    An  alien?    Naturalization? 

28.  What  is  a  bankrupt  law?    The  power,  why  given  to  Congress? 

29.  State  the  powers  of  Congress  as  to  coinage;  as  to  weights  and 

measures;  as  to  the  Post-Officc.     Why  given? 

30.  What  is  a  copyright?   A  patent?    What  are  their  objects? 

31.  What  powers  has  Congress  as  to  piracy?  as  to  offences  under 

international  law?    Why  given? 

32.  Over  what  parts  of  the  United  States  has  Congress  exclusive 

authority? 

33.  Name  some  of  the  implied  powers  of  Congress. 

34.  Who  has  the  power  to  declare  war?    Why? 

35.  What  are  letters  of  marque?    What  is  prize? 

36.  How  is  an  army  raised?    How  docs  Congress  control  it? 

37.  By  whom  may  the  militia  be  called  out?    When? 

38.  Name  the  prohibitions  upon  the  United  States. 

39.  What  is  habeas  corpus?    A  bill  of  attainder?    An  ex  post  facto 

law?    An  appropriation  by  Congress? 

40.  State  the  reason  for  the  prohibitions  as  to  titles  of  nobility. 

41.  Name  the  prohibitions  upon  the  States. 

42.  State  the  difference  between  money  and  legal  tender. 

43.  What  is  legal  tender  in  the  United  States  now? 

Executim  Department. 

44  What  is  the  advantage  of  having  but  one  President? 

45.  By  whom  is  he  elected  ?    For  what  term? 

46.  What  other  modes  were  proposed?     State  the  objections  to  them? 

What  was  the  purpose  of  the  present  one?     Was  its  purpose 
accom  plished  ?    W  hy  ? 


Review  Questions.  193 


47.  ArePresidential  Electors  elected  or  appointed?  By  whom?  State 

their  proceedings. 

48.  When  does  the  House  elect  the  President?    How  does  it  vote? 

49.  What  are  the  President's  qualifications?     Salary? 

50.  What  are  the  duties  of  the  Vice-President? 

51.  State  the  President's  powers  as  to  the  army  and  navy,  reprieves 

and  pardons,  treaties,  and  appointments. 

52.  What  is  the  danger  connected  with  this  power  of  appointment? 

53.  What  is  the  purpose  of  the  President's  message? 

54.  What  is  the  most  comprehensive  dutj^  of  the  President? 

55.  Name  the  auxiliary  executive  departments,  and  their  duties. 

Judicial  Department. 

56.  Explain  the  necessity  for  a  national  judiciary. 

57.  Name  the  national  courts. 

58.  Can  the  United  States  be  sued?    Why? 

59.  What  is  the  Court  of  Claims?    How  are  its  judgments  enforced? 

60.  Are  the  judges  appointed  or  elected?    By  whom?     For  what 

term? 
■^  61.  State  the  three  classes  of  cases  in  which  the  United  States  courts 
have  jurisdiction,  with  the  reason  in  each  case. 

62.  What  is  treason?     What  proof  necessary?    Its  punishment. 

63.  Name  the  crimes  which  the  United  States  may  punish. 

Miscellaneous  Promsions. 

64.  State  the  provision  of  the  Constitution  as  to  the  rights  of  citizens 

of  one  State  in  another. 

65.  How  are  fugitive  criminals  returned? 

66.  What  protection  must  the  United  States  extend  to  the  States? 

67.  How  may  the  Constitution  be  amended? 

68.  When  a  law  of  Congress  and  a  state  law  are  antagonistic,  which 

must  prevail?    A  law  of  Congress  and  a  state  constitution? 

69.  What  persons  are  obliged  to  take  the  oath  to  support  the  Con- 

stitution? 

70.  How  did  the  Constitution  originally  become  binding  on  a  State? 

How  does  an  amendment  to  it? 

71.  How  many  Amendments  are  there?     What  is  the  Bill  of  Rights? 

Its  purpose? 
^^2.  State  the  substance  of  each  amendment,  when  it  was  passed,  and 
its  purpose. 

73.  Can  a  State  be  sued  by  a  State  in  a'state  court?    In  a  national 

court? 

74.  Can  a  State  be  sued  by  a  private  person  in  a  state  court?    In  a 

national  court?     Why? 


PART  11. 

Principles  or  Law. 


DIYISION  I. 
Municipal  Law.* 


SECTION  I. 
Civil   Rights    in    General, 


CHAPTER  XLIII. 

ABSOLUTE   CIVIL  EIGHTS,  f 

1.  Introductory. — Li  this  Division,  tinder  the  heading 
Municipal  Law,  it  is  our  purpose  to  give  a  general  idea  of 
the  ordinary  civil  rights  secured  to  persons  in  the  United 
States,  and  the  principles  of  law  by  which  they  are  pro- 
tected. This  is  a  subject  which,  being  local,  belongs  in 
most  part  to  the  different  States,  and  not  to  the  National 
Government,  but  the  principles  are  substantially  the  same 
in  all  the  States. 

*  By  this  term  is  meant  the  body  of  laws  governing  the  ordinary 
every-day  actions  of  men,  and  their  different  rights  in  relation  to 
each  other;  particularly  as  distinguished  from  international  law.  It 
might  be  used  to  mean  law  concerning  cities,  villages,  etc.,  but  that 
is  not  its  meaning  here  (see  page  16). 

f  See  pages  15,  18. 


196  Municipal  Law. 


2.  Common  Law. — There  are  two  sources  of  law  in  this 
country,  the  common  law  and  statute  law;  or  the  unwritten 
and  written  law.  The  Common  Law  of  England  is  the  basis 
of  law  in  all  the  States  except  Louisiana.  It  is  not  a  code 
of  written  laws  enacted  by  a  legislature,  but  consists  of 
rules  of  action  which  have  become  binding  from  long  usage 
and  established  custom.  It  is  said  to  be  founded  in  reason 
and  the  principles  of  justice.  It  was  brought  over  from 
England  by  our  ancestors,  and  established  here  before  the 
Revolution;  and  is  now  the  law  in  all  particulars  wherein 
the  constitutions  or  legislatures  have  not  changed  it. 

3.  Statute  Law. — But  in  each  State  the  legislature  is 
free  to  change  the  common  law,  and  ^to  legislate  upon  sub- 
jects which  the  common  law  does  not  touch.  These  laws 
enacted  by  the  legislature  are  called  statutes;  from  the 
Latin  statuo,  to  fix  or  establish.  For  this  reason  the  law 
on  some  subjects  will  differ  in  different  States.  Yet,  as  we 
have  said  before,  the  principles  are  the  same. 

4.  Rights  of  Persons. — These  have  been  before  described 
as  the  three  great  rights  of  personal  security,  personal 
liberty,  2iudi  private  property  (see  page  15).  We  have  seen 
what  provisions  are  often  contained  in  constitutions  for 
their  protection  (Chap.  XLI.).  These  are  the  fundamental 
rights  of  men,  and  most  of  the  subordinate  rights  are  but 
forms  of  one  or  another  of  these  three. 

5.  Personal  Security. — The  right  of  personal  security  is 
also  protected  by  the  law  which  permits  a  person  to  exercise 
the  natural  right  of  self-defence.  When  assaulted  so  that 
one  has  reason  to  fear  that  he  is  in  danger  of  his  life  or  of 
some  serious  injury  to  body  or  limb,  he  may  use  all  the 
force  necessary  in  defence  and  may  lawfully  take  the  life 
of  his  assailant.  It  is  lawful  to  take  the  life  of  a  burglar 
found  in  a  house  at  night,  for  he  is  presumed  to  be  ready 
to  commit  murder.     If  the  assault  is  not  so  violent  as  to 


Rights  in  General,  197 


cause  one  to  .fear  serious  injury,  it  is  lawful  to  use  only 
sufficient  forcB  to  prevent  the  injury.  But  in  all  cases  the 
offender  may  be  sued  for  damages  by  the  party  injured. 
An  assault  is  also  punishable  criminally.  The  right  is 
further  protected  by  the  law,  by  which  a  man,  on  showing 
reasonable  c«,use  of  danger  of  personal  injury,  may  require 
his  adversary  to  be  bound  with  sureties  to  keep  the  peace. 

6*  SJaD.der. — The  right  of  personal  security  includes  the 
right  to  be  secure  in  our  good  names,  and  is  protected  by 
the  law  against  slander  and  libel.  A  slander  is  a  false 
statement  about  another  which  injures  him  in  his  reputa- 
tion or  business;  such  as,  a  charge  that  he  has  been  guilty 
of  a  crime,  or  has  a  malignant  disease,  or  any  falsehood 
which  he  can  prove  has  injured  him.  For  uttering  such 
falsehood  the  slanderer  may  be  compelled  to  pay  heav}? 
damages  to" the  injured  person.  And  he  is  liable  whether 
he  originated  the  statement  or  merely  repeated  it.  Therq 
is,  however,  no  criminal  jiunishment  for  slander. 

7.  Libel. — A  libel  is  a  false  publication  in  print  or 
writing,  signs  or  pictures,  tending  to  injure  a  person  in  his 
reputation  or  business,  or  to  expose  him  to  public  hatred, 
'Contempt,  or  ridicule.  And  it  is  considered  in  law  a  pub> 
lication  of  such  defamatory  writing,  though  communicated 
to  a  single  person.  A  slander  written  or  printed  is  likely 
to  have  a  wider  circulation,  to  make  a  deeper  impression, 
and  to  become  more  injurious.  Libel  is  therefore  broader 
than  slander,  and  a  person  may  be  liable  in  damages  for 
words  in  print  or  writing  for  which  he  would  not  be  liable 
if  merely  spoken.  In  case  of  libel,  also,  a  person  is  not  only 
liable  to  a  private  suit  for  damages,  but  may  be  indicted  and 
tried  as  for  other  public  offences,  and  it  makes  no  difference 
whether  he  originates  or  merely  repeats  the  statement.* 

*  It  was  formerly  the  law  that  in  the  criminal  action  for  libel  it 
made  no  difference  whether  the  statement  was  true  or  false.    The 


198  Municipal  Law. 


8.  Personal  Liberty. — -Every  person  has  the  right  to  go 
wherever  he  pleases,  free  from  restraint  on  the  part  of 
others.  If  any  one  restrains  him  of  his  liberty  even  for  a 
very  short  period  or  without  violence,  as  by  locking  him 
in  a  room,  he  may  recover  damages.  This  is  one  of  our 
most  valued  rights,  and  is  forfeited  only  by  crime.  In 
children,  lunatics,  and  others  unable  to  care  for  themselves, 
it  is  limited  in  some  degree,  for  their  own  good  and  that  of 
the  community.  Before  our  late  war  the  slaves  had  not 
this  right,  but  now  all  are  equal.  The  writ  of  Habeas 
Corpus  has  been  referred  to  as  one  of  the  most  efficient 
means  of  securing  this  right  against  false  accusations  of 
crime  (page  85).  Freedom  of  speech,  of  the  press,  and  of 
religion  are  included  in  the  term  personal  liberty.  But  it 
is  a  universal  rule  that  one  must  not  use  his  own  rights  so 
as  to  injure  those  of  another.  Thus  one  may  not  use  his 
right  of  personal  liberty  in  speaking  of  another  so  as  to 
violate  that  other's  right  of  personal  security,  i.  e.  by  injur- 
ing his  reputation. 

9.  Private  Property. — Every  person  has  the  right  to 
acquire,  to  use  as  his  own,  in  any  way  he  sees  fit,  and  to 
dispose  of,  any  amount  of  property.  No  one,  not  even  the 
governm^t,  can  deprive  him  of  his  property  without  his 
consent;  though  sometimes  the  government  may  take  his 
property,  when  necessary  for  public  use,  by  paying  for  it 
(page  70).  This  right  of  private  property  is  fundamental, 
but  it,  too,  is  limited  by  the  rule  that  one  must  use  his  own 
rights  so  as  not  to  injure  those  of  others.  The  purpose  of 
law  is  to  give  to  each  one  as  much  liberty  as  is  consistent 

reason  was  that  tlie  People  were  injured  by  the  malicious  statement, 
because,  whether  true  or  false,  it  excited  the  other  party  to  commit 
some  personal  violence,  and  so  commit  a  breach  of  the  peace.  But 
this  la  now  changed  in  many  States,  and  if  the  publication  be  true 
and  published  for  a  good  purpose  it  is  not  a  libel. 


Bights  in  General  199 

with  the  liberty  of  others.  Sections  II.  and  III.  of  this 
Division  will  contain  a  sketch  of  the  system  of  law  regu- 
lating and  balancing  the  rights  of  property  of  all. 


CHAPTER  XLIV. 

RELATIVE  CIVIL  EIGHTS. 

a.  Public. 

1.  Public  Relative  Civil  Rights  have  been  described 
before  (page  15).  Every  person  has  the  right  to  demand 
protection  by  the  government.  This  protection  is  afforded 
by  its  police  and  other  civil  officers.  So,  also,  if  these  are 
not  sufficient  the  governor  is  bound  to  call  out  the  militia, 
to  protect  even  a  single  person.  Another  means  of  protec- 
tion is  the  system  of  courts,  in  which  every  person  is  at 
liberty  to  sue  in  order  to  enforce  his  rights.  In  return  for 
this  protection  the  government  .is  entitled  to  the  obedience 
of  the  citizen.  This  is  enforced  in  different  ways.  It  may 
imprison,  fine,  or  even  kill  one  who  disobeys  its  laws 
(Chap.  LXL). 

h.  Private.^ 

2.  Duties  of  Parent. — Parents,  as  the  natural  protectors 
of  their  children,  are  obliged  to  provide  for  their  support 
and  education  during  their  minority,  or  while  they  are 
under  twenty-one  years  of  age.  The  father,  or,  if  there  is 
no  father,  the  mother,  is  bound  to  support  the  minor  chil- 

*  The  rights  arising  from  the  relation  of  husband  and  wife  are 
treated  of  under  Sec.  II.,  Contracts,  because  marriage,  the  basis,  is 
a  contract  (Chap.  XL VI.). 


200  Municipal  Law. 


dren.  Even  if  they  have  property  of  their  own,  the  father 
is  so  bound,  but  the  mother  is  not.  If  a  parent  neglects 
to  provide  necessaries  for  his  child,  others  may  do  so  and 
sue  the  parent  for  their  value. 

3.  Rights  of  Parent. — The  parent  has  the  right  to  the 
custody  of  his  child,  and,  being  deprived  of  it,  may  recover 
it  again.*  It  is  lawful  for  a  parent  to  punish  his  child  for 
good  cause,  but  not  cruelly.  Being  bound  to  provide  for 
his  children,  the  father  has  a  right  to  their  labor  or  service; 
and  he  may  recover  their  w^ages  from  any  person  employing 
them  without  his  consent.  Children  who  are  able  are  in 
general  bound  to  support  indigent  parents. 

4.  Property  of  Child. — Very  often  a  child  has  property 
of  his  own.  As  he  is  unable  to  take  the  management  of 
it,  a  guardian  is  appointed  for  him  for  that  purpose.  The 
guardian  may  use  the  property  for  the  support  and 
education  of  the  child  (called  his  ward)  during  its  mi- 
nority. He  may  sell  the  personal  property,  but  the 
real  estate  cannot  be  sold  without  permission  from  the 
court.  At  twenty-one  the  guardian  must  transfer  all  the 
property  to  his  ward,  and  render  an  account  of  all  his 
transactions.  He  is  responsible  for  any  loss  caused  by  his 
wrong  or  negligence.  If  there  is  no  parent,  the  guardian 
takes  the  place  of  parent  to  some  extent,  and  has  a 
right  to  the  custody  of  his  ward,  and  may  administer 
proper  punishment.  If  there  is  a  father  or  mother,  he  or 
she  is  generally  the  one  appointed  guardian. 

5.  Apprenticeship. — This  is  a  relation  established  by  a 
written  agreement,  by  which  a  male  or  female  minor,  with 
the  consent  of  his  or  her  parents,  agrees  to  serve  as  an 
apprentice,  or  servant,  to  some  one  in  a  certain  trade  or 
employment,  until  twenty-one  years  of  age,  or  for  a  less 


*  Seej)age  85,  note. 


Riglits  in  General.  201 

period.  In  return  for  these  services  the  master  is  to  teach 
tlie  minor  the  trade.  This  is  an  exception  to  the  rule  of 
an  infant's  inability  to  contract  (page  203),  for  the  master 
can  compel  the  apprentice  to  fulfill  his  agreement.  To  a  cer- 
tain extent  he  acts  as  a  parent,  may  punish  his  apprentice, 
and  is  liable  for  his  suport.  The  officers  having  charge  of  the 
poor  may  bind  out  pauper  children  in  this  way.  Formerly 
apprenticeships  were  common,  but  now  in  this  country 
they  are  little  used,  and  the  subject  is  an  unimportant  one 
in  the  law. 

6.  Master  and  Servant. — This  relation  can  hardly  be  said 
to  exist  at  present  in  this  country.  Formerly  certain 
rights  and  duties  flowed  from  it,  such  as  the  right  of  the 
master  to  administer  corporal  punishment,  or  the  duty  of 
the  servant  to  protect  his  master  against  assailants.  But, 
as  a  result  of  the  democratic  equality  of  all  persons  here, 
it  has  come  to  be  merely  a  contract  relation.  The  employer 
agrees  to  pay  a  certain  sum  for  certain  services  which  the 
employed  agrees  to  render;  and  each  must  fulfill  the  con- 
tract (Chap.  XLV.).  With  regard  to  how  far  an  employer 
is  answerable  to  other  parties  for  the  acts  of  the  employed, 
the  relation  is  one  of  principal  and  agent,  and  the  prin- 
cipal is  responsible  just  so  far  as  the  agent  had  a  right  to 
act  for  him  (Chap.  XLVIL). 


202  Municipal  Law. 


SECTIOlSr  11. 
Contracts. 

CHAPTER  XLV. 

CONTRACTS   IN   GENERAL. 

1.  Definition. — A  contract  is  an  agreement  or  a  promise 
by  one  person  with  another  to  do  or  not  to  do  a  particular 
thing.  Contracts  may  be  written  or  oral.  Certain  con- 
tracts, like  those  for  the  sale  of  land,  must  be  in  writing 
(see  page  206);  but  most  of  the  contracts  of  daily  life  are 
oral.  They  may  be  also  express  or  implied.  The  former 
is  where  there  is  an  agreement  expressed  orally  or  in  writ- 
ing; the  latter  is  where  a  person  does  certain  things  which 
in  law  imply  an  agreement,  as,  where  a  person  employs  one 
to  do  anything  for  him,  or  buys  certain  things,  a  promise 
is  implied  to  pay  what  the  labor  or  the  things  bought  are 
worth.*  This  subject  of  contracts  is  very  broad  in  law,  for 
most  of  our  daily  actions  are  but  the  fulfillment  of  con- 
tracts, and  we  may  contract  to  do  almost  anything. 

2.  Rule. — The  fundamental  rule  of  law  and  justice  with 

*  Another  distinction  between  contracts  is  that  they  may  be  ex- 
ecutory 01  executed.  An  executory  contract  is  one  where  the  agree- 
ment is  to  do  something  at  some  future  time ;  an  executed  contract 
is  one  where  nothing  remains  to  be  done  afterward,  but  the  agree- 
ment is  immediately  carried  out.  For  instance:  where  one  agrees 
to  sell  real  estate  at  some  future  time  the  contract  is  executory;  the 
deed  itself  is  an  executed  contract. 


Contracts.  203 


regard  to  contracts  is  this  :  that  a  person  must  do  what  he 
or  she  has  agreed  to  do.  This  is  the  rule,  but  the  excep- 
tions to  it — also  founded  in  justice — are  quite  numerous, 
and  the  principal  ones  will  form  the  subjects  of  the  follow- 
ing sections  of  this  chapter. 

3.  Capacity  of  Parties. — It  would  be  unjust  to  compel  a 
person  to  fulfill  his  contracts  if  he  were  incapable  of  con- 
trading-,  i.e.  if  his  powers  of  thought  were  not  strong 
enough  to  enable  him  to  judge  what  was  for  his  best  ad- 
vantage. For  this  reason  infants  (i.e.  minors),  lunatics, 
idiots,  and  some  others,  cannot  be  compelled  to  fulfill  any 
contracts  they  may  make.  Otherwise  great  advantage 
might  be  taken  of  them  by  unscrupulous  persons.  But 
when  one  does  contract  with  such  a  person,  he  cannot  re- 
fuse to  fulfill  his  share  of  the  bargain,  if  the  minor  or 
other  such  person  wishes  to  uphold  it.  Nor  can  the  per- 
son Incapable  to  contract,  if  he  or  she  has  received  any- 
thing under  the  contract,  refuse  to  fulfill  it  without  restor- 
ing what  has  been  received. 

4.  Infancy. — An  infant  in  legal  language  is  a  person,  boy 
or  girl,  under  twenty-one  years  of  age.  The  reason  why 
they  may  not  make  contracts  which  may  be  enforced  against 
them  is  that  they  have  not  had,  as  a  rule,  sufficient  experi- 
ence to  prevent  others  from  gaining  the  advantage  in  their 
contracts.  Therefore  an  infant  while  he  may  receive  prop- 
erty cannot  sell  any,  and  if  he  does,  can  regain  it.  But  if 
after  becoming  of  age  he  ratifies  the  contract,  then  it  is  as 
if  he  had  made  it  when  of  age.  There  is  one  exception  to 
an  infant's  incapacity  to  contract.  He  may  contract  for 
necessaries  when  he  has  no  parent  or  guardian  who  supplies 
them ;  i.  e.  such  things  as  food,  clothing,  lodging,  and 
education,  and  when  he  obtains  them  may  be  made  to  pay 
for  them.  Otherwise  he  could  not  obtain  them,  for  no 
one  would  trust  him. 


204  Municipal  Law. 


5.  Lunacy. — Lunatics  and  idiots  are  protected  in  the 
same  way,  because  they  are  unable  to  protect  themselves. 
An  agreement  is  an  act  of  the  mind,  and  therefore  one  who 
has  no  mind  cannot,  in  reality,  agree.  A  person  while  in- 
toxicated has  lost  the  use  of  his  faculties  for  the  time,  and 
therefore  any  contract  that  he  makes  during  that  time  he 
may  refuse  to  fulfill ;  but,  if  he  adopts  it  on  becoming  sober, 
he  cannot  afterward  question  it. 

6.  Married  Women,  by  the  common  law,  could  not  make 
contracts,  and  they  cannot  now  in  many  particulars. 
This  was  not  because  of  their  supposed  incapacity,  but  be- 
cause  the  husband  and  wife  were  considered  as  one  person. 
But  the  common  law  has  been  changed  in  many  States  by 
statute,  and  they  may  make  some  contracts;  such  as,  any 
contract  necessary  in  the  management  of  their  separate 
property,  even  to  sell  or  buy  it,  and  any  contract  made  in 
connection  with  a  business  which  they  may  be  carrying  on. 

7.  Assent. — Another  requisite  to  a  contract  is  the  mu- 
heal  assent  of  the  parties.  A  mere  offer  by  one  party  not 
assented  to  or  accepted  by  the  other  constitutes  no  con- 
tract. This  is  implied  in  the  word  agreement,  for  it  takes 
two  to  '^ agree."  In  case  the  parties  are  distant  from  each 
other,  if  the  proposition  is  sent  by  mail,  and  a  letter  of 
acceptance  is  written  and  put  in  the  mail,  the  contract  is 
complete,  unless,  before  mailing  the  letter  of  acceptance, 
a  second  letter  Jias  been  received  containing  a  retraction  of 
the  proposal. 

8.  Consideration. — Every  contract  must  have  a  consid- 
eration to  be  enforceable.*  The  consideration  of  a  con- 
tract is  what  is  given,  done,  or  promised,  as  the  cause  or 


*  Promissory  notes  and  bills,  transferred  before  they  are  due  to 
a  person  who  does  not  know  whether  they  are  without  CQnsid.eratioA 
or  not,  are  an  exception  to  this  rule.     (See  page  224.) 


Contracts.  206 


reason  for  which  a  person  enters  into  the  agi-eement.  Thus, 
the  money  given  or  promised,  for  which  a  man  agrees  to 
perform  certain  labor,  is  the  consideration  of  the  agree- 
ment. So  the  money  or  other  thing  for  which  a  promis- 
sory note  is  given,  is  the  consideration.  Mutual  promises 
are  sufficient  considerations  to  make  a  contract  binding; 
but  they  must  be  made  at  the  same  time.  Such  promises 
support  each  other.  The  promise  of  one  party  constitutes 
a  sufficient  consideration  for  a  promise  by  the  other  party. 
But  the  law  will  not  enforce  a  contract  on  the  part  of  one 
where  the  other  party  has  not  given,  done,  or  promised 
something  on  his  part.  The  purpose  of  the  law  is  to 
remedy  some  injury  done,  but  a  party  is  not  considered  as 
injured  when  another  refuses  to  fulfill  a  promise  to  him, 
unless  he  has  done  something  on  his  part  to  balance  such 
promise.  Therefore  promises  wholly  gratuitous  are  void, 
such  as  a  promise  to  give  one  money  or  property  as  a  gift.* 
9.  Gratuitous  Services.^So,  also,  services  rendered  which 
have  not  been  requested  afford  no  ground  for  a  claim  for 
payment.  This  is  a  case  not  of  lack  of  consideration,  but 
of  absence  of  contract.  There  is  even  no  implied  promise 
to  pay  for  the  services,  for  they  were  not  requested.  Had 
they  been  requested,  there  would  have  been  an  implied 
promise  to  pay  for  them.  And  it  makes  no  difference  how 
valuable  the  services  are,  as  the  saving  of  property  from 
fire,  or  the  securing  of  cattle  found  astray,  or  of  property 
lost.  This  seems  unjust,  but  the  injustice  would  be  greater 
were  it  the  other  way  ;  for  then  any  one  might  force  any 
service  upon  us  which  we  did  not  want,  and  compel  us  to 
pay  for  it. 

*  The  moral  law  may  require  the  fulfillment  of  such  a  promise, 
but  the  municipal  law  cannot.  This  is  an  instance  where  human 
law  is  not  so  broad  as  the  moral  law.    (See  page  17.) 


206  Municipal  Law, 


10.  Fraud  and  Force. — We  have  seen  that  assent  is  nec- 
essary to  a  contract.  But  it  must  also  be  given  freely  and 
with  full  knowledge.  If  it  is  obtained  by  means  of  force, 
as  through  threats  of  any  kind,  or  by  fraud,  as  by  repre- 
senting facts  that  were  not  true,  or  concealing  facts  that 
the  other  had  a  right  to  know,  the  party  upon  whom  the 
force  or  fraud  is  practised  can  claim  there  is  no  contract  if 
he  wishes  to.  The  other  one  cannot,  for  it  is  a  rule  in  law 
that  one  cannot  take  advantage  of  his  own  wrong-doing. 

11.  Impossible  Contracts. — No  man  can  bind  himself  to 
do  what  is  not  in  the  power  of  man  to  do.  But  it  is  other- 
wise, if  the  thing  to  be  done  is  only  at  the  time  impossible 
in  fact,  but  not  impossible  in  its  nature,  and  this  impossi- 
bility might  have  been  anticipated.  Hence,  inability  from 
sickness  to  fulfill  an  agreement,  or  the  impossibility  of 
procuring  an  article  which  a  person  has  agreed  to  deliver, 
would  not  exempt  him  from  liability  in  damages  for  the 
non-performance  of  his  contract. 

12.  Illegal  Contracts. — An  agreement  to  do  a  thing  that 
the  law  makes  unlawful,  such  as  to  commit  a  crime,  cannot 
be  enforced,  nor  any  promise  made  in  consideration  of  such 
a  contract.  For  this  reason  bets  cannot  be  enforced  in 
law,  for  betting  and  gaming  are  forbidden.  But  if  a  for- 
bidden contract  has  been  carried  out,  the  law  will  not  set 
it  aside;  it  will  not  aid  one  wrong-doer  as  against  another. 

13.  Written  Contracts. — Any  agreement  is  a  contract 
and  may  be  put  in  writing.  *  But  there  are  certain  agree- 
ments to  which  a  person  cannot  be  held  against  his  will 
unless  they  are  in  writing  and  signed  by  him.     The  two 


*  When  a  contract  is  in  writing  neither  party  is  allowed  to  prove 
that  the  real  intention  was  different.  The  parties  have  put  it  in 
writing  in  order  that  it  might  be  the  best  evidence  of  what  the  in- 
tention was. 


Contracts.  207 


principal  classes  are,  a  contract  for  the  sale  of  real  estate  or 
any  interest  therein  (deeds,  leases,*  etc.),  and  a  contract 
for  the  sale  of  any  personal  property  over  a  certain  amount 
in  value  (pages  218,  237).  Others  are,  an  agreement  to  pay 
the  debt  of  another,  an  agreement  of  an  executor  to  pay 
the  debt  of  an  estate  out  of  his  own  property,  and  any 
contract  not  to  be  performed  within  one  year.  Such  trans- 
actions are  important  ones  usually,  and  the  evidence  of 
them  should  be  something  less  open  to  mistake  than  spoken 
words. 

14.  Limitations. — But  though  a  contract  might  con- 
form to  all  the  requirements,  it  nevertheless  could  not  be 
enforced  unless  an  action  were  brought  for  the  purpose 
within  a  particular  time  after  it  was  made.  This  time 
varies,  according  to  the  nature  of  the  action  brought,  from 
five  or  six  years,  as  in  the  ordinary  cases  of  debt,  to  twenty 
or  thirty  years,  as  in  the  case  of  land.  Different  States, 
too,  have  different  periods  for  the  same  thing. 

15.  Remedies. — Where  a  contract  is  broken  by  one  of 
the  parties,  the  preventive  remedies  which  the  law  gives  to 
the  other  party  are  of  two  kinds:  in  cases  where  the  wrong 
is  not  a  single  act  but  continuous,  the  court  may  order 
the  wrong-doer  to  stop,  as  where  one  has  agreed  not  to  build 
a  house  on  a  particular  spot  but  commences  to  do  so;  in 
certain  kinds  of  cases  the  court  may  order  one -to  fulfill  his 
contract,  or  imprison  him  if  he  will  not,  as  to  sign  a  deed 
that  he  has  agreed  to  give.  But  the  compensatory  remedy 
applies  in  nearly  all  cases,  even  in  those  where  the  others 
also  apply.    This  remedy  is  to  compel  the  party  in  the  wrong 

to  pay  the  party  wronged  so  much  money,  called  damages.  ^^' 

/  ' 

*  Except  in  many  States  certain  short  leases  (page  242). 


208  Municipal  Law, 


CHAPTER  XLVI. 

MARRIAGE. 

1.  Its  Nature. — Marriage  is  a  contract.  But  it  is  also  more 
than  a  contract  or  agreement :  it  is  a  permanent  change 
of  status,  of  condition.  The  rights  of  the  parties  toward 
each  other  are  radically  changed  by  marriage.  This  change 
was  still  greater  in  former  generations  than  it  now  is. 
Being  so  important  an  act,  the  law  does  not  allow  it  when 
either  party  is  under  a  certain  age,  called  the  age  of  consent, 
because  the  person  under  that  age  is  presumed  to  be  too 
young  to  know  what  it  really  is  that  he  or  she  is  consenting 
to.  Consent  without  knowledge  of  what  is  consented  to  is 
not  real  consent.  In  this  chapter  we  are  considering  solely 
the  contract  of  marriage,  that  is,  marriage  itself,  which 
must  not  be  confounded  with  the  contract  to  marry  at 
some  future  time,  commonly  called  engagement, 

2.  Relationship. — Marriages  between  parties  nearly  re- 
lated are  forbidden,  and  if  contracted  are,  in  general,  void. 
The  laws  of  the  States  differ  as  to  the  degree  of  relation- 
ship at  which  persons  may  not  marry.  The  most  common 
rule  is  that  first  cousins  may,  but  any  more  nearly  related 
may  not.  Thus  a  marriage  between  uncle  and  niece  is 
void. 

3.  Lunacy:  Force:  Fraud. — As  in  all  other  contracts, 
to  make  a  marriage  binding  the  parties  must  act  freely,  and 
must  have  sufficient  intelligence  to  know  what  they  are 
doing.  If  one  is  forced  to  marry  by  threats  or  other  means, 
the  marriage  may  be  declared  void  if  the  party  forced  so 
desires.  So  the  lunatic  or  idiot,  or  some  one  representing 
him  or  her,  may  have  the  marriage  declared  void.     In  those 


Contracts,  209 


cases  the  other  party  cannot  complain,  and  the  marriage  is 
binding  if  the  forced  or  incapable  person  desires  it  to  be.* 
But  if  one  is  deceived  into  marrying  a  lunatic,  that  is 
fraud,  and  it  entitles  him  to  have  the  marriage  annulled. 
So,  also,  if  a  party  marri^  one,  thinking  it  is  another.  In 
all  these  cases  there  is  no  real  consent,  and  hence  no  con« 
tract. 

4.  Ceremony. — There  is  usually  no  definite  form  which 
must  be  followed  in  the  performance  of  marriage,  and  no 
particular  words  which  the  parties  must  use.  The  only 
essential  part  is  that  they  acknowledge,  in  seriousness  and 
in  some  appropriate  manner,  that  they  marry  each  other. 
It  is  always  prudent,  if  not  necessary,  that  this  should  be 
done  in  the  presence  of  a  number  of  witnesses,  for  otherwise 
there  might  be  no  one  to  prove  the  marriage.  The  laws  of 
many  States  provide  that  the  ceremony  must  be  performed 
by  a  clergyman,  or  some  judicial  or  other  officer.  Anyone 
who  saw  a  marriage  performed  may  prove  it  in  court. 

5.  Bigamy. — This  is  marriage  with  a  second,  while  still 
possessing  a  first  husband  or  wife.  Not  only  is  it  a  crime 
for  which  one  may  be  punished,  but  such  second  marriage 
is  null  and  void.  It  has  no  effect  on  the  first  marriage. 
Polygamy  is  marriage  with  more  than  two.  In  such  case 
all  marriages  but  the  first  are  void.  The  polygam^y  prac- 
tised by  the  Mormons  in  Utah  is  contrary  to  the  laws  of 
the  United  States. 

6.  The  Wife's  Property. — By  the  common  law  the  prop- 
erty which  a  woman  owned  became  her  husband's  on  mar- 
riage. Her  personal  property  became  his  absolutely,  and 
he  might  use  and  dispose  of  it  as  he.  pleased.  Her  real 
estate  he  could  not  dispose  of,  but  had  the  right  to  use  it 


See  page  206,  sec.  10. 


210  Municipal  Law. 


while  they  both  lived.  It  will  be  seen  how  dependent  on 
her  husband  she  became.  This  was  the  rule  once,  but  one 
part  of  it  after  another  has  been  changed,  until  at  present 
in  most  States  the  wife  retains  the  use  and  right  of  dis- 
posal of  all  her  property,  both  real  and  personal,  as  though 
she  were  single. 

7.  Dower. — Such  were  the  rights  he  gained  in  her  prop- 
erty. But  by  the  common  law  she  obtained  a  certain  right 
in  his  property,  but  only  his  real  estate.  This  right, 
called  dower,  is  the  right  of  the  wife  upon  the  death  of  her 
husband  to  have  set  apart,  for  her  own  use  during  her  life, 
one-third  part  of  all  the  real  estate  which  the  husband 
possessed  at  any  time  during  marriage.  During  his  life 
she  could  not  claim  it,  but  might  on  his  death,  though  he 
had  sold  the  land.  This  right  still  exists  in  most  of  the 
States.  This  is  the  reason  why  a  wife  must  join  with  her 
husband  in  signing  a  deed  (see  page  237).  Its  object  is  to 
prevent  a  husband  leaving  his  wife  destitute. 

8.  Support. — The  husband  is  bound  to  maintain  his 
wife,  and  is  liable  for  debts  which  she  may  contract  for 
necessaries,  but  for  nothing  more.  If  he  refuses  to  provide 
for  her  wants,  or  if,  through  other  ill-treatment  or  fault  on 
his  part,  they  become  separate,  he  is  liable  to  fulfill  her 
contracts  for  necessaries,  even  though  he  has  forbidden 
persons  to  trust  her.  If  she  leaves  him  by  her  own  fault, 
or  if  they  part  by  consent,  and  he  secures  to  her  a  separate 
maintenance,  and  pays  it  according  to  agreement,  he  is  not 
liable  even  for  necessaries. 

9.  Divorce. — No  length  of  separation  while  both  parties 
live,  nor  any  consent,  can  dissolve  the  marriage  contract. 
The  only  way  to  dissolve  it  ig  by  a  decree  of  a  court  grant- 
ing a  divorce.  The  most  common  cause  for  which  this 
may  be  obtained  is  adultery,  but  some  States  allow  it  for 
other    causes,   such  as    desertion,   cruelty,   drunkenness. 


Contracts.  211 


After  the  divorce  the  innocent  party  is  at  liberty  to  marry 
again.  The  guilty  party  may  not  by  the  laws  of  some 
States.* 


CHAPTER  XLVII. 

PRINCIPAL  AND  AGENT. 

1.  Nature  of  Agency. — An  agent  is  a  person  authorized 
to  act  with  third  parties  on  behalf  of  and  in  the  name  of 
another,  who  is  called  the  principal.  This  is  one  of  the 
most  common  and  necessary  relations  of  life,  and  exists 
with  regard  to  all  kinds  of  subjects.  Every  clerk,  employe, 
or  laborer  is  the  agent  of  the  person  or  corporation  that 
employs  him,  so  far  as  what  he  does  is  in  connection  with 
third  parties.  All  brokers  and  officers  of  corporations  act 
almost  wholly  as  agents  in  their  business.  So,  also,  do  law- 
yers, auctioneers,  masters  of  ships,  etc. 

2.  Act  of  Agent. — The  fundamental  rule  of  agency  is  that 
a  principal  is  bound  by  the  acts  of  his  agent,  as  if  they 
were  his  own  acts,  so  long  as  the  agent  keeps  within  the 
authority  granted  him.  If  that  authority  is  exceeded  the 
principal  is  not  bound,  unless  he  afterward  ratify  the  act.  \ 

*  Limited  di'corces  are  also  granted  sometimes,  but  these  do  not 
permit  either  party  to  marry  again. 

A  divorce  proper  must  be  distinguished  from  that  judgment  of  a 
court  which  annuls  a  marriage  on  the  ground  of  force,  fraud,  incapa- 
city, or  want  of  age.  The  latter  kind  of  decree,  though  often  called 
a  divorce,  decides  that  there  never  was  any  legal  marriage,  for  some 
cause  existing  prior  to  the  supposed  marriage ;  a  divorce  proper  dis- 
solves a  binding  legal  marriage  for  some  cause  arising  after  it. 

f  If  in  any  case  an  agent  appears  to  have  a  general  authority, 
which  is  really  limited  by  private  instructions,  the  principal  is  re- 


212  Municipal  Law, 

3.  Wrong  Committed  by  Agent. — This  power  of  an 
agent  to  bind  his  principal  extends  not  only  to  the  making 
of  contracts  or  other  business  acts,  but  even  to  the  com- 
mitting of  personal  injuries,  if  they  are  committed  in  con- 
nection with  the  business:  thus,  if  the  engineer  of  a  rail- 
road train  through  negligence  injures  any  person  or  prop- 
erty, the  company  is  responsible.  But  the  wrong  must 
have  been  committed  in  connection  with  the  business  in 
which  the  agent  is  employed.  If  there  is  no  connection 
between  the  act  and  the  employment,  it  is  only  the  personal 
act  of  the  agent,  and  he  alone  is  liable. 

4.  Duty  to  Principal. — The  relation  between  the  agent 
and  principal  alone  is  one  of  contract,  the  agreement  being 
on  the  agent's  part  that  he  will  act  as  the  principal  directs, 
with  care,  skill,  and  diligence.  Therefore  an  agent  is 
bound,  in  general,  to  observe  the  instructions  of  his  prin- 
cipal, even  though  an  act  contrary  to  such  instructions 
should  be  intended,  and  really  be,  for  the  benefit  of  the 
principal.  The  agent  must  bear,  personally,  all  losses 
growing  out  of  a  non-compliance  with  his  orders;  and  the 
profit  accruing  therefrom  goes  to  the  benefit  of  the  prin- 
cipal. When  an  agent  receives  no  instructions,  he  must 
conform  to  the  usage  of  trade  or  to  the  custom  applicable 
to  the  particular  agency. 

5.  Liability  to  Third  Parties. — When  an  agent  is  duly 
authorized  to  do  an  act — not  unlawful  in  itself,  such  as  a 
crime  or  misdemeanor — he  is  not  responsibla  to  third  par- 
ties (i.e.  those  with  whom  he  deals)  for  that  act.  The 
principal  alone  is  bound,  for  he  is  fhe  one  who  derives  the 
benefit.  But  there  are  three  principal  cases  in  which  an 
agent  acting  for  another  makes  himself  liable:  (1)  where 

sponsible  for  any  act  which  comes  within  the  apparent  authority, 
though  it  may  not  be  within  the  real  authority. 


Contracts,  213 


lie  exceeds  his  authority;*  (2)  where  he  professes  to  act 
as  agent,  but  does  not  disclose  his  principal;  and  (3)  where 
he  is  really  acting  as  agent,  but  professes  to  be  acting  for 
himself.  The  rule  is  general  that  if  an  agent  fails  to  bind 
his  principal  he  binds  himself.  In  the  second  and  third 
cases,  where  the  principal  is  not  known,  the  agent  is 
bound,  because  otherwise  the  party  with  whom  he  deals 
might  have  no  one  that  he  could  hold  responsible  to  him: 
but  in  such  cases  he  may  hold  the  principal  also,  if  he  is 
discovered,  for  one  cannot  take  the  benefit  of  an  act  with- 
out being  bound  by  it. 

6.  Commission  Merchants. — This  class  of  agents  is  quite 
large  in  cities.  A  commission  merchant  is  one  who  sells 
for  another  the  goods  manufactured  or  raised  by  the  latter, 
for  a  compensation,  usually  a  percentage  on  the  price 
(called  a  commission).  Very  often  they  sell  without  dis- 
closing the  name  of  their  principals.  All  the  appropriate 
rules  of  agency  apply  to  them,  as  to  personal  liability  or 
non-liabilility,  care,  skill,  etc* 

7.  Lien. — Though  the  goods  which  a  commission  mer- 
chant sells  belong  to  some  one  else,  he  has  a  lien  upon  them 
for  any  advances  he  has  made  to  the  owner,  f  and  for  his 
expenses  and  commissions.  A  lien  on  personal  property  is 
a  right  to  hold  it  against  the  owner;  that  is,  the  owner  can- 
not take  the  goods  away  without  refunding  the  money 
received  and  paying  any  charge  due.  Even  though  the 
owner  should  order  him  not  to  sell,  the  commission  mer- 
chant may  sell  in  order  to  satisfy  his  claim,  paying  over 
the  surplus,  if  any,  to  the  owner.  There  are  also  other 
kinds  of  liens  on  property  (see  pages  218,  229,  232). 

*  But  if  the  third  party  knows  that  the  agent  has  no  authority,  the 
agent  is  not  bound.     No  one  is. 

f  It  is  very  common  for  the  commission  merchant  to  advance  ^ 
portion  of  the  price  to  the  owner,  before  sale. 


214  Municipal  Law, 


8.  Brokers. — These  form  another  common  class  of  agents. 
A  hroTcer  is  an  agent  employed  chiefly  to  negotiate  sales 
between  parties.  His  business  may  consist  in  negotiating 
exchanges;  or  in  buying  and  selling  stocks,  goods,  ships, 
or  cargoes;  or  in  procuring  insurances  and  settling  losses, 
etc. ;  and  as  he  confines  himself  to  one  or  the  other  of  these 
branches,  he  is  called  an  exchange  broker,  stock  broker, 
insurance  broker,  etc.  A  broker  differs  from  a  commission 
merchant  in  that  the  former  has  not  the  custody  of  the 
goods  of  his  principal.  He  is  merely  empowered  to  effect 
the  contract  of  sale;  and  when  this  is  done  his  agency  ends. 
As  to  his  principal  he  must  carry  out  his  agreement;  i.e. 
must  do  what  he  agrees  with  skill,  care,  and  promptness. 
As  to  others  he  is  subject  to  all  the  rules  of  agency. 


CHAPTER  XLVIII. 

PAKTNERSHIP. 

1.  Definition. — A  partnership  is  an  association  formed 
by  contract  between  two  or  more  persons  for  joining  their 
money,  labor,  or  skill,  in  lawful  business,  the  profits  to 
be  divided  and  the  loss  to  be  borne  by  the  partners  in  cer- 
tain proportions.  It  is  a  partnership  if  one  furnishes  the 
funds  and  the  other  performs  the  labor;  or  if,  when  no 
money  is  necessary,  each  agrees  to  do  his  share  of  the  labor. 
A  partnership  is  often  denominated  ^jirm,  or  house.  It  is 
very  often  formed  by  written  articles  of  partnership,  but 
it  may  be  formed  by  an  oral  agreement. 

2.  Act  of  One  Partner. — The  great  rule  of  partnership  is 
that  tho  act  of  one  partner  binds  all.     In  matters  pertaining 


Contracts.  215 


to  the  business  of  the  firm,  each  partner  is  the  agent  of  the 
firm;  so  that  if  one  buys  or  sells  for  the  firm,  all  are  bound. 
Not  only  the  property  owned  by  the  firm  and  used  in  the 
business,  but  also  the  private  property  of  each  partner,  is 
liable  for  the  debts  of  the  firm.  But  this  authority  of  each 
partner  to  act  for  the  partnership  extends  only  to  the  busi- 
ness in  which  they  are  engaged;  if  one  acts  in  the  name  of 
the  firm  in  any  other  matter,  he  is  an  agent  without  au- 
thority, and  therefore  binds  only  himself  (page  212,  sec.  5). 

3.  Secret  Partner. — One  who  should  conceal  his  name 
so  as  not  to  be  known  as  a  partner  when  the  debt  is  con- 
tracted, may  be  sued  when  discovered  to  be  such.  This  is 
the  case  of  an  undisclosed  principal  (page  213). 

4.  Transfer  of  Interest. — A  partner  cannot  sell  his  in- 
terest to  another  person,  who  is  to  take  his  place  in  the 
partnership,  without  the  consent  of  all  the  partners.  The 
power  of  a  partner  is  so  great  that  each  one  ought  to  have 
the  right  in  the  beginning  to  say  who  shall  exercise  this 
right  for  him.  Whenever  a  new  member  is  taken  in,  or  an 
old  member  retires,  it  is  reall}'  the  formation  of  a  new  firm. 

5.  Duration. — The  contract  of  partnership  may  be  for 
any  specified  time,  or  no  particular  time  may  be  specified. 
In  the  former  case  it  cannot  be  dissolved  before  the  time 
expires,  except  by  a  court  for  some  misconduct  on  the  part 
of  one  partner,  or  for  his  insanity  or  other  inability.  In 
the  latter  case,  where  no  time  is  fixed,  any  partner  may  at 
will  dissolve  the  partnership.  The  death  of  one  partner 
dissolves  it. 

6.  Notice  of  Dissolution. — When  a  partnership  is  dis- 
solved by  the  withdrawal  of  any  of  the  partners,  notice  of 
dissolution  must  be  given,  for  a  firm  may  be  bound  by  a 
contract  made  by  one  partner,  in  the  usual  course  of  busi- 
ness and  in  the  name  of  the  firm,  with  the  person  who  con- 
tracted on  the  faith  of  the  partnership,  and  who  had  no 


216  Municipal  Law. 

notice  of  the  dissolution.*  The  same  notice  is  necessary 
to  protect  a  retiring  partner  from  continued  responsibility. 
And  even  if  due  notice  is  given,  yet,  if  he  willingly  suffers 
his  name  to  continue  in  the  firm  or  in  the  title  of  the  firm 
over  the  door  of  the  shop  or  store,  he  may  in  certain  cases 
be  liable. 

7.  Limited  Partnership. — In  some  of  the  States,  a 
partnership  may  be  formed  by  a  number  of  persons,  some 
of  whom  are  to  be  responsible  only  to  a  limited  amount; 
and  their  names  are  not  to  be  used  in  the  firm.  Before  a 
partnership  of  this  kind  can  do  business,  a  writing  and 
certificate  signed  by  the  parties  stating  the  terms  of  partner- 
ship and  the  amount  for  which  the  special  partners  (as 
they  are  called)  are  to  be  responsible  must  be  recorded. 
The  terms  of  partnership  must  also  be  published  in  a  news- 
paper. In  these  limited  partnerships,  as  they  are  termed, 
the  special  partners  are  liable  only  to  the  amount  stated  in 
the  terms  of  partnership.  The  other  partners,  called 
general  partners,  whose  names  only  are  used,  and  who 
transact  the  business,  are  liable  for  all  the  debts  contracted, 
as  in  ordinary  partnerships. 

8.  Rights  as  to  Each  Other. — So  far  we  have  treated  only 
of  the  rights  of  partners  as  to  third  parties.  As  to  each 
other  they  have  just  such  rights  as  they  may  agree  upon. 
It  is  wholly  a  matter  of  contract.  Thus  a  partner  may 
sell  an  article  to  a  third  person  when  he  has  not  the  right 
to  do  it  as  to  his  partners,  because  he  has  agreed  with  them 
not  to  do  so.  In  partnerships  containing  more  than  two, 
a  majority  usually  has  the  right  to  decide  all  questions. 

*  Actual  notice  must  be  given  to  those  dealing  regularly  with  the 
firm,  but  as  to  the  rest  of  the  world  a  publication  in  some  news- 
paper is  sufficient. 


Contracts.  217 


CHAPTER  XLIX. 

SALES  OF  PERSONAL  PROPERTY. 

1.  Definition  of  Sale. — A  sale  is  a  contract  by  which  the 
ownership  (called  the  title)  of  certain  property  is  transferred 
from  one  person  to  another  for  a  certain  price :  the  exchange 
of  a  commodity  for  its  equivalent  in  money.  The  exchange 
of  one  commodity  for  another  is  larter.  The  same  general 
principles  of  law  which  apply  to  contracts  in  general  are 
applicable  to  contracts  of  sale;  viz.,  the  competency  of  the 
parties  to  contract;  the  assent  of  the  parties;  the  absence 
of  fraud;  the  sufficiency  of  the  consideration;  its  possibility 
and  legality. 

2.  Existence  of  Property. — A  thing  cannot  be  sold  un- 
less it  exists.  Thus,  if  A  sells  a  horse  or  certain  goods  to 
B,  and  if,  at  the  time  of  the  sale,  the  horse  is  dead  or  the 
goods  are  destroyed,  the  sale  is  void.* 

3.  Agreement  to  Sell. — But  a  person  may  agree  to  sell  at 
some  future  time  an  article  not  now  in  existence  or  which 
he  does  not  own,  for  he  may  manufacture  or  buy  it.  Such 
an  agreement  is  subject  to  all  the  ordinary  rules  of  con- 
tracts. It  is  an  executory  contract;  while  a  sale  is  an  ex- 
ecuted contract. 

4.  Delivery. — To  constitute  a  valid  sale,  as  between  the 
seller  and  buyer,  it  is  not  necessary  that  the  articles  should 
be  delivered.  By  the  contract  alone — if  it  is  valid  in  other 
respects,  such  as  being  without  fraud,  or  in  writing  if 
necessary — they  become  the  buyer's  property,  and  it  is  his 

*  But  one  may  sell  that  which  is  the  expected  product  or  increase 
of  something  to  which  the  seller  has  a  present  right.  Thus,  a  man 
may  sell  the  wool  that  may  grow  on  his  slieep,  the  fruit  thai  may 
grow  on  his  trees,  or  the  future  increase  of  his  cattle. 


218  Municipal  Law. 


loss  if  they  are  destroyed  before  delivery.  Sale  and  delivery 
are  thus  two  separate  acts.  In  case  of  barter,  however,  the 
delivery  must  be  made  before  the  ownership  will  change. 

5.  Written  Contract. — In  certain  cases  some  memoran- 
dum in  writing  of  the  terms  of  the  sale  must  be  signed  by 
the  party  to  be  charged,  or  his  authorized  agent,  or  he  can 
repudiate  the  sale.  These  cases  are  any  sales  of  personal 
property  over  a  certain  amount  in  value,  varying  in  the 
different  States  from  $30  to  $200.  No  writing  is  necessary 
when  the  goods  are  under  the  fixed  amount  in  value;  and 
even  when  over  that  amount  it  is  not  necessary  if  there  is 
(1)  a  delivery  and  acceptance  by  the  buyer  of  some  part  of 
the  goods  sold,  or  (2)  a  payment  of  any  part  of  the 
price. 

6.  Lien. — When  nothing  is  said  at  the  sale  as  to  the 
time  of  delivery  or  the  time  of  payment,  the  buyer  is 
entitled  to  the  goods  on  payment  or  tender  of  the  price, 
and  not  otherwise;  for  though  he  acquires  the .  right  of 
property  by  the  contract  of  sale,  he  does  not  acquire 
the  right  of  possession  until  he  pays  or  tenders  the 
price.  This  right  of  the  seller  to  hold  the  goods  until 
paid  is  called  his  lien.  But  if  the  seller  delivers  the  goods 
absolutely,  and  without  fraudulent  contrivance  on  the  part 
of  the  buyer,  he  loses  his  lien.  All  he  then  has  is  the  right 
to  sue  the  buyer  for  the  price.  But  when  goods  are  sold 
on  credit  and  nothing  is  said  as  to  the  time  of  delivery,  the 
buyer  is  immediately  entitled  to  the  possession. 

7.  Sale  without  Title. — Where  one  professes  to  sell  what 
he  does  not  own,  no  ownership  passes,  even  though  he  has 
it  in  possession  and  the  buyer  has  no  suspicion  that  it  is 
not  his.  The  true  owner  can  claim  the  property  at  any 
time.  This  is  so  whether  the  article  was  lost  or  stolen  from 
him. 

8.  Exception. — Money  and  what    is  called  negotiable 


Contracts,  219 


paper  *  form  an  exception  to  this  rule.  If  they  are  sold 
or  transferred,  even  by  a  thief,  to  one  who  gives  good  con- 
sideration for  them,  and  has  no  reason  to  suspect  they  do 
not  belong  to  the  one  professing  to  own  them,  they  belong 
to  the  buyer,  and  the  true  owner  loses  them. 

9.  Warranty  of  Title. — In  the  sale  of  personal  property, 
if  the  seller  has  possession  of  the  article  and  sells  it  as  his 
own,  he  is  understood  to  tvarrant  the  title ;  that  is,  he  in 
effect  agrees  to  reimburse  the  buyer  if  some  third  person 
proves  the  article  to  be  his.  This  agreement  is  implied 
whether  anything  is  said  about  it  or  not.  But  if  the  pos- 
session is  at  the  time  in  another,  and  there  is  no  express 
covenant  or  warranty  of  title,  the  party  buys  at  his  peril, 
and  cannot  look  to  the  seller  for  reimbursement.  If,  how- 
ever, the  seller  affirms  that  the  property  is  his  own,  he 
warrants  the  title,  though  it  is  not  in  his  possession. 

10.  Quality. — With  regard  to  the  quality  of  the  thing, 
the  seller  is  not  bound  to  make  good  any  deficiency,  unless 
he  expressly  warranted  the  goods  to  be  of  a  certain  quality, 
or  unless  he  made  a  fraudulent  representation  or  conceal- 
ment concerning  them.  The  rule  is,  if  there  is  no  express 
warranty  by  the  seller,  nor  fraud  on  his  part,  and  if  the 
article  is  equally  open  to  the  inspection  of  both  parties,  the 
buyer  who  examines  the  article  for  himself  must  abide  by 
all  losses  arising  from  its  not  being  what  he  wanted  or 
expected. 

*  "  Negotiable  paper"  includes  bank-bills,  bonds  of  the  National 
or  State  Governments,  of  cities,  railroads,  etc.,  when  payable  to 
bearer,  stock  certificates  with  blank  powers  of  attorney  attached, 
promissory  notes  and  bills  endorsed  in  blank  or  payable  to  bearer, 
aud  some  othe^*  securities, 


220  Municipal  Law, 


CHAPTER  L. 
gifts:  fkaudulent  transfers. 

1.  Gifts. — In  general  a  person  may,  if  he  wishes,  give 
away  any  or  all  of  his  property  to  any  one,  without  receiv- 
ing anything  in  return.  But  delivery  is  necessary  to  a 
gift.  When  delivered,  the  gift  cannot  be  revoked  by  the 
giver,  but  a  mere  promise  to  give  cannot,  we  have  seen,  be 
enforced  (page  205).  There  is  one  exception  to  this  rule: 
a  gift  made  in  anticipation  of  the  death  of  the  giver  may 
be  revoked  by  liim  at  any  time  before  death. 

2.  Creditors'  Rights. — But  if  a  man  is  insolvent,  or  is 
in  such  embarrassed  circumstances  tliat  he  is  likely  soon  to 
become  insolvent,  he  is  not  allowed  to  give  away  any  of  his 
property.  His  creditors  have  a  riglit  to  have  it  applied  to 
the  payment  of  their  debts.  If  the  creditors  do  not  com- 
plain, the  gift  remains  irrevocable. 

3.  Delivery  of  Personal  Property. — We  have  seen  that 
delivery  is  not  necessary  to  a  valid  sale  as  between  the 
buyer  and  seller  (page  217).  But  when  it  is  not  delivered, 
this  gives  the  seller  an  opportunity  to  defraud  by  selling  it 
over  again,  or  to  deceive  his  creditors  by  pretending  he  has 
sold  or  mortgaged  it  when  he  really  has  not.  For  this  rea- 
son, the  law  in  some  States  provides  that  a  sale  or  mortgage 
of  personal  property  without  delivery  shall  be  void  as  against 
creditors  and  subsequent  purchasers ;  that  is,  the  creditor  or 
second  purchaser  can  take  it  in  spite  of  the  first  sale. 

4.  Chattel  Mortgages.* — Persons  very  often  wish  to  bor- 
row money,  and  mortgage  some  personal  property  for  its 
payment  and  yet  retain  and  use  the  property.  This,  how- 
ever, would  be  impossible  if  the  rule  given  in  section  3 


Chattel  inean^  personal  property. 


Contracts,  221 


were  absolute.  Provision  is  therefore  made  in  many  States 
by  which  these  mortgages  may  be  recorded  in  the  town  or 
county  clerk's  office,  and  when  so  recorded  the  mortgage 
is  valid  against  any  one,  though  the  property  is  left  with 
the  owner. 

5.  Transfers  to  Creditors. — A  debtor  may  transfer  his 
property  to  a  creditor  in  payment  of  his  debt,  even  though 
it  leaves  other  debts  unpaid.  It  is  also  a  very  common  oc- 
currence for  a  person  in  failing  circumstances  to  assign  all 
his  property,  in  trust,  to  one  or  more  persons,  who  are  to  dis- 
pose of  it,  and  to  apply  the  avails  to  the  payment  of  his 
creditors,  or  a  part  of  them.  He  may  in  such  assignment 
direct  that  certain  ones  shall  be  paid  first.  But  such  an 
assignment  does  not  release  the  debtor  from  his  debts, 
unles  the  property  is  sufficient  to  pay  them  in  full. 

6.  Releases. — It  is  also  common  for  creditors  to  release 
their  debtor  on  payment  of  a  part  of  the  debt.  Such  re- 
lease is  valid  if  signed  and  sealed.  When  a  debtor  agrees 
to  pay  his  creditors  a  certain  proportion  of  their  claims  in 
consideration  of  a  discharge  of  their  demands,  if  he  pri- 
vately agrees  to  give  a  better  or  further  security  to  one  than 
to  others,  the  contract  is  void  as  to  all;  because  the  condi- 
tion upon  which  they  agree  to  discharge  the  debtor  is  that 
they  shall  share  equally. 


CHAPTER  LI. 

PROMISSORY   KOTES   AND   BILLS   OF   EXCHANGE. 

a.  Notes. 

1.  A  Promissory  Note  is  a  written  promise  to  pay  a 
specified  sum  of   money  at  a  certain  time,  to  a  person 


232  Municipal  Law. 


named,  or  to  his  order,  or  to  the  bearer.     The  following  is 
a  common  form: 

1100.  New  York,  May  28,  1880. 

Three  months  after  date,  I  promise  to  pay  to  James 
Smith  &  Co.,  or  order,  one  hundred  dollars,  value  received. 

John  Browk. 

In  such  a  note.  Brown  is  the  makers  and  Smith  &  Co.  the 
payees.  The  words  *'  value  received  "  have  generally  little 
legal  force. 

I.  Bills.  ♦ 

2.  A  Bill  of  Exchange  *  (called  also  a  draft)  is  a  written 
order  or  request  by  one  person  to  another  to  pay  a  third 
person  a  certain  sum  of  money.  The  following  is  a  com- 
mon form: 

$1000.  New  York,  May  28,  1880. 

Twenty  days  after  date  (or  at  sight,  or  ten  days  after 
sight),  pay  to  the  order  of  James  Smith  &  Co.  one  thou- 
sand dollars,  value  received; 
and  charge  the  same  to  account  of  Thomas  Jones. 

To  John  Brown, 

New  Orleans,  La. 

In  such  a  bill,  Jones  is  the  draiver,  Smith  &  Co.  the 
payees,  and  Brown  the  draivee.  After  acceptance,  the 
drawee  is  called  the  acceptor, 

3.  Use  of  Bills. — Bills  are  of  very  great  convenience  in 
commerce.  Suppose  Jones,  of  New  York,  owes  Smith  & 
Co.,  ot  New  Orleans,  $1000;  and  that  Brown,  of  New  Or- 
leans owes  Jones  $1000.     If  Jones  sends  Smith  &  Co.  an 

*  In  this  chapter  we  shall  call  it  a  hill. 


Contracts.  223 


order  upon  Brown  to  pay  IIOOO  to  them,  both  debts  are 
cancelled,  and  the  trouble  and  danger  of  sending  the  money 
is  avoided.  Smith  &  Co.  may  transfer  the  bill  to  any  one 
before  payment,  in  which  case  they  become  indorsers  (see 
sec.  7). 

4.  Acceptance. — The  bill  is  presented  to  the  drawee  be- 
fore  it  becomes  due.  If,  when  presented,  he  agrees  to  pay 
it  when  due,  h3  is  said  to  accept  the  bill,  and  writes  his 
acceptance  upon  it.  An  acceptance  may,  however,  be  oral. 
A  drawee  is  under  no  obligation  to  the  payee  to  a^gcept,  but, 
having  accepted,  he  becomes  the  principal  debtor;  and  the 
drawer  becomes  a  surety;  that  is,  he  agrees  to  pay  if  the 
acceptor  does  not.  The  acceptor  is  bound,  though  he  ac- 
cepted without  consideration  and  for  the  sole  accommoda- 
tion of  the  drawer. 

6.  Non-Acceptance. — If  the  drawee  refuses  to  accept,  the 
indorsers  become  liable  to  the  holder  and  to  each  other  in 
their  order  for  the  amount  of  the  bill,  as  described  in  sec- 
tion 14,  provided  notice  of  the  non-acceptance  is  sent 
them,  as  described  in  section  16.  So,  also,  if  the  bill  is 
not  paid  when  due  they  become  liable  in  the  same  way,  if 
notice  is  sent. 

6.  Check. — A  check  upon  a  bank  is  a  bill  of  exchange, 
and  IS  subject  to  all  the  appropriate  rules.  It  is  usual]y 
payable  on  demand,  and  has  no  days  of  grace. 

c.  Rules  applicable  to  both, 

7.  Indorsement. — A  note  or  bill  payable  to  bearer  may 
be  transferred  by  delivery  without  any  writing;  but  when 
payable  to  the  order  of  any  one,  it  is  usually  transferred  by 
the  one  to  whose  order  it  is  made  writing  his  name  at  the 
time  of  delivery  across  the  back.  This  is  called  indorse- 
ment. The  indorsement  is  considered  as  the  order  of  the 
payee  to  the  maker  or  acceptor  to  pay  it  to  some  other  per- 


224  Municipal  Law, 


son.  A  bill  may  be  indorsed  before  or  after  acceptance. 
Where  the  name  simply  is  written  across  the  back  it  is 
called  a  blanh  indorsement ,  and  it  may  thereafter  be  trans- 
ferred from  one  to  another  by  delivery,  the  same  as  one 
payable  to  bearer.  Or  the  payee  may  order  it  paid  to  any 
particular  person.  Such  person  may  in  turn  make  it  pay- 
able k)  bearer  by  indorsing  in  blank,  or  may  make  it  pay- 
able to  any  particular  person.  He  thus  becomes  the  second 
indorser,  the  payee  being  the  first.  In  case  of  a  bill  the 
drawer  is  a  surety  to  both.  The  person  in  whose  hands 
it  is  when  due  collects  it.* 

8.  Notes  and  Bills  are  Contracts,  and  therefore  as  be- 
tween the  original  parties  (in  a  note  the  maker  and  payee, 
in  a  bill  the  acceptor  and  payee)  they  must  conform  to  all 
the  rules  governing  contracts,  as  to  consideration,  legality, 
etc.  (Chap.  XLV.).  Thus  if — in  above  note — Brown  had 
received  nothing  for  it  from  Smith  &  Co.,  but  he  had  given 
it  to  them  in  order  that  they  might  sell  it  to  some  one  else 
and  thus  raise  money,  they  could  not  sue  him  upon  it.  f 
So,  also,  if  he  had  any  claim  against  them,  he  could  off- 
set it  against  the  note.  But  as  soon  as  Sniith  &  Co.  in- 
dorse the  note  or  bill  and  sell  it  to  some  one  else,  it  is  no 
longer  subject  to  those  rules,  as  will  be  explained  in  the 
following  section. 

9.  Negotiability. — When  a  note  or  bill  has  been  thus 
transferred,  before  it  is  due,  to  some  one  who  gives  money 
or  other  consideration  for  it,  and  who  has  no  knowledge  of 
how  it  originated,  such  an  owner  may  collect  it  from  the 
maker  or  acceptor,  although  the  payee  could  not.     Thus 

*  The  advantage  of  making  notes,  checks,  and  bills  payable  to 
order  is  that  no  one  but  the  one  to  whose  order  they  are  payable  can 
collect,  and  if  lost  the  owner  suffers  no  loss.  It  is  otherwise  with 
those  payable  to  bearer  or  indorsed  in  blank  (see  sec.  9). 

f  Such  notes  are  quite  common,  called  accommodation  noUs.       '' 


Contracts.  226 


the  maker  or  acceptor  cannot  plead  that  he  received  no 
consideration  for  it,  nor  that  it  has  been  paid,  though  those 
matters  should  be  true.  He  cannot  offset  against  it  any 
demand  he  has  against  one  who  did  own  it.  In  case  of  a 
note  or  bill  payable  to  bearer  or  indorsed  in  blank,  even 
though  it  had  been  stolen  from  an  owner,  a  person  receiv- 
ing it  in  good  faith  could  collect  it,  and  the  real  owner 
could  not.  This  is  an  exception  to  the  rule  that  the  true 
owner  of  stolen  property  is  entitled  to  it  wherever  he  finds 
it  (see  page  218).  Hence,  notes  ttnd  bills  are  called  nego- 
tiable paper.  But  if  the  holder  aas  knowledge  of  any  of 
these  defects,  or  if  he  has  reason  vo  suspect  their  existence, 
he  cannot  sue  the  maker  or  acceptor  on  it. 

10.  Reason  for  It. — The  reason  for  this  difference  between 
negotiable  paper  and  other  contracts  is  its  common  use, 
and  the  facility  with  which  it  passes  from  one  to  another. 
Its  use  in  commercial  transactions  is  of  great  public  con- 
venience, one  note  sometimes  passing  through  five  or  six 
hands;  and  it  is  proper  that,  for  the  sake  of  trade,  pro- 
tection should  be  given  to  the  holder  of  such  paper  who 
receives  it  fairly  in  the  way  of  business.  But  it  could  not 
be  so  used  if  each  holder  had  to  take  the  risk  of  there 
being  some  defence  to  it  of  which  he  could  know  nothing. 
But  it  is  also  proper  to  refuse  aid  to  one  who  takes  it  with 
knowledge  of  its  defects. 

11.  Transfer  after  Maturity. — After  falling  due  a  note 
or  bill  is  no  longer  negotiable.  If  transferred  after  matu- 
rity, the  maker  or  acceptor  may  make  any  defence  to  it  he 
could  have  made  as  against  the  person  who  owned  it  at 
maturity.  For  instance:  in  case  of  a  note,  if  the  payee 
owned  it  when  due  and  there  was  no  consideration  for  it 
originally,  the  maker  need  not  pay  it.  But  if  the  one  who 
owns  it  when  due  can  collect  it,  any  one  to  whom  he  trans- 
fers it  can  also.     The  general  rule  is  that  one  can  always 


226  Municipal  Law. 


convey  the  rights  he  has.  A  transfer  of  negotiable  paper 
before  maturity  is  peculiar,  in  that  it  may  convey  rights 
that  the  person  transferring  did  not  have. 

12.  Time  of  Payment :  Interest. — Notes  and  bills  pay- 
able on  demand,  or  in  which  no  time  of  payment  is  men- 
tioned, are  due  immediately,  and  no  demand  of  payment  is 
necessary.  But  a  note  payable  at  sight,  or  at  a  specified 
time  after  sight,  must  be  presented  for  payment  before  it 
can  be  sued.  If  the  words  "  with  interest "  are  omitted, 
interest  commences  at  the  time  the  note  or  bill  becomes 
due.  If  payable  on  demand,  it  will  draw  interest  from  the 
time  when  payment  is  demanded. 

13.  Days  of  Grace. — Notes  and  bills  payable  by  their  terms 
on  a  certain  day  are  not  really  due  until  the  third  day 
thereafter.  Those  three  days  are  called  days  of  grace.  If 
the  last  day  of  grace  falls  on  Sunday  or  a  legal  holiday,  it  is 
due  the  day  before. 

14.  Indorser's  Liability.  —  Indorsement  is  a  contract. 
Whenever  a  person  to  whom  a  note  or  bill  is  made  payable, 
or  one  to  whom  it  has  been  indorsed,  writes  his  name  on 
the  back  and  transfers  it  to  another,  he  contracts  with  that 
other  and  with  all  future  holders  that  if  the  maker  or  ac- 
ceptor does  not  pay  it  when  due,  he  will.  Therefore  the 
holder  of  an  unpaid  note  may  sue  not  only  the  maker  or 
acceptor,  but  every  indorser  whose  name  is  on  the  back 
when  he  takes  it.  In  case  of  an  accepted  bill  the  holder 
may  sue  the  acceptor,  the  indorsers,  and  drawer.  In  case 
of  a  non-accepted  bill  he  may  sue  the  indorsers  and  drawer. 
If  an  indorser  pays  it,  he  may  sue  any  indorser  prior  to 
him,  besides  the  maker,  and  in  case  of  a  bill  the  acceptor 
and  drawer.  One  who  transfers  a  note  or  bill,  payable  to 
bearer  or  indorsed  in  blank,  is  not  liable  to  any  one  on  it. 

15.  Demand  of  Payment. — The  maker  of  a  note  or  ac- 
ceptor of  a  bill  may  be  sued  at  any  time  after  maturity, 


Contracts,  227 


whether  payment  was  demanded  or  not.  But  to  hold 
the  indorsers  of  a  note,  or  the  indorsers  and  drawer  of  an 
accepted  hill,  responsible,  payment  must  he  demanded  of 
the  maker  or  acceptor  on  the  last  day  of  grace. 

16.  Notice  to  Indorser. — If  the  maker  or  acceptor  does 
not  pay  on  that  day,  notice  of  that  fact  must  be  given  to 
the  indorsers  and  drawer  to  hold  them;  and  the  whole  of 
the  next  day  is  allowed  in  which  to  send  the  notice.  But 
the  holder  need  only  notify  such  as  he  chooses  to  hold 
liable  to  him,  in  which  case  if  the  indorser  notified  wishes 
to  hold  prior  ones  liable  to  him,  he  must  himself  send  them 
notices,  which  he  has  another  day  to  do.  If  the  holder 
notifies  all  (the  usual  course),  they  are  liable  in  their  order 
to  each  other.*  It  is  not  necessary  that  the  notice  should 
reach  the  party  for  whom  it  is  intended,  but  simply  that  it 
should  be  left  at  his  residence  if  the  parties  live  in  the  same 
town,  or  sent  by  mail  if  they  do  not. 

17.  Forged  Paper. — If  a  note  or  bill  is  forged,  no  one 
can  gain  any  right  upon  it  against  the  one  whose  name  is 
forged.  So  if  an  indorsement  is  forged  it  conveys  no  right, 
or  if  the  amount  is  raised  by  forgery.  This  is  so,  although 
a  person  should  buy  it  in  good  faith  believing  it  genuine. 
Negotiability  only  applies  to  true  instruments.  On  the 
same  principle,  in  those  States  where  a  usurious  contract  is 
wholly  void,  a  usurious  note  or  bill  is  void  in  the  hands  of 
every  one. 

*  The  object  of  the  notice  is  to  give  the  indorser  the  earliest  op- 
portunity to  secure  himself  against  loss. 


228  Municipal  Law, 


CHAPTER  LII. 

SEKVICES. 

1.  Kinds  of  Service. — A  very  common  class  of  contracts 
is  that  where  one  party  undertakes  to  perform  some  labor 
or  service  for  another.  The  services  of  doctors,  lawyers, 
editors,  the  different  kinds  of  manufacturers  and  mechanics, 
such  as  carpenters,  painters,  tailors,  etc.,  belong  to  this 
class.  Very  often  there  is  no  express  agreement  to  pay, 
but  a  request  for  the  labor  is  sufficient,  and  a  contract  to 
pay  a  reasonable  price  for  it  is  implied. 

2.  Ordinary  Skill. — By  undertaking  to  render  such 
services  a  person  represents  that  he  has  the  ordinary  skill 
and  knowledge  necessary  in  the  trade  or  profession,  and  if 
he  has  not  he  can  recover  nothing  for  his  labor,  and  is 
liable  for  all  damage  done.  Thus  a  doctor  who  injures  one 
through  neglect  or  want  of  skill  or  knowledge  is  answer- 
able for  air  damage. 

3.  Care  of  Property. — When  the  property  of  one  person 
comes  into  the  hands  of  another,  for  safe-keeping,  repair, 
or  other  purpose,  he  must  take  such  care  of  it  as  an  ordi- 
narily careful  man  does  of  his  own  property.  The  degree 
of  care  must  be  in  proportion  to  the  advantage  he  is  to 
derive  from  it.  Thus  a  borrower,  who  pays  nothing  for 
its  use,  must  exercise  the  greatest  care;  ordinary  care  is 
required  of  one  who  expends  labor  on  it  and  receives  an 
equivalent,  or  of  a  hirer,  or  of  one  who  takes  it  as  a  pledge 
for  debt;  slight  care  is  sufficient  when  the  party  having  it 
derives  no  advantage.  In  all  these  cases,  if  the  property  is 
lost  or  injured,  but  through  no  fault  of  the  person  having 
it,  it  is  the  owner's  loss. 

4.  Hotel-Keepers  are  obliged  to  take  all  who  apply  to 


Contracts,  229 


them  for  lodging  or  board  and  offer  to  pay  their  regular 
price.  They  are  in  general  responsible  for  all  injuries  to 
the  goods  and  baggage  of  their  guests,  even  for  thefts. 
But  for  loss  caused  by  unavoidable  accident,  or  by  superior 
force,  as  robbery,  they  are  not  liable.  They  have  a  lien 
upon  the  baggage  of  their  guests  for  the  payment  of  their 
charges. 

6.  Common  Carriers  are  those  who  transport  goods  for  hire 
as  a  common  business,  whether  by  land  or  by  water.  All 
railroad,  steamboat,  express,  and  stage  companies  are  com- 
mon carriers.  They  are  bound  to  receive,  from  any  person 
paying  or  tendering  the  freight  charges,  such  goods  as  they 
are  accustomed  to  carry  and  as  are  offered  for  the  place  to 
which  they  carry.  But  they  may  refuse  to  receive  them  if 
full,  or  if  they  are  dangerous  to  be  carried. 

6.  The  Responsibility  of  common  carriers  is  greater  than 
that  of  others  who  receive  property  not  their  own  for  some 
purpose,  such  as  mechanics,  manufacturers,  depositaries, 
etc.  The  latter  we  have  seen  are  not  responsible  for  the 
loss  or  injury  of  the  property,  except  when  it  occurs 
through  some  degree  of  neglect  on  their  part;  but  the  com- 
mon carrier  is  responsible  in  all  cases,  whether  negligent  or 
not.  He  is,  in  effect,  an  insurer  of  the  goods  against  any 
loss  or  injury.  But  if  it  occurs  through  some  gi*eat  event 
which  could  not  have  been  anticipated,  like  an  inundation, 
war,  etc.,  he  is  not  liable. 

7.  As  to  Passengers  the  responsibility  of  common  car- 
riers is  not  so  great.  They  are  only  liable  for  injuries 
which  occur  through  the  want  of  skill,  knowledge,  or  care, 
of  themselves  or  their  agents. 

8.  Lien. — Where  the  personal  property  of  one  comes 
into  the  hands  of  another,  for  the  performance  of  some 
labor  in  connection  with  it,  the  latter  has  a  lien  upon  it  for 
his  seitices;  that  is,  he  may  retain  it  until  paid.     Thus  a 


230  Municipal  Law. 


carriage-maker  has  a  lien  upon  the  carriage  he  has  repaired; 
a  blacksmith  upon  the  horse  he  has  shod;  and  a  common 
carrier  upon  the  goods  he  has  transported.  They  have  also 
the  right  to  enforce  the  contract  by  suit.  But  if  they 
allow  the  property  to  go  out  of  their  possession  they  lose 


the  lien. 


CHAPTER  LIIL 

IKSURAIs^CE. 

1.  Kinds. — Contracts  of  insurance  are  of  three  kinds, 
fire,  marine,  and  life  insurance,  and  are  usually  in  writing. 
They  are  called  policies^  and  are  generally  issued  by  an  in- 
corporated company,  in  return  for  a  fixed  yearly  payment, 
called  a  premium.  Being  merely  contracts,  they  are  sub- 
ject to  all  the  ordinary  rules  governing  contracts.  As  a 
rule,  the  premium  must  be  paid  on  the  day  when  due,  or 
the  insurance  ceases.  We  will  refer  only  to  a  few  points  in 
which  they  are  peculiar. 

2.  Fire. — A  contract  of  fire  insurance  is  an  agreement 
to  pay  for  the  loss  or  injury  by  fire  of  certain  property,  real 
or  personal,  during  a  certain  period.  This  includes  all 
damage  done  to  the  property  not  only  by  the  fire  itself, 
but  also  in  consequence  of  a  fire.  Thus  if  it  be  injured  by 
water  used  to  put  out  the  fire,  even  though  it  is  not  in  the 
same  building,  the  insurers  are  liable.  The  policy  usually 
names  a  certain  amount,  and  the  company  is  liable  for  all 
damage  up  to  that  amount.  But  the  owner  must  do  all  he 
can  to  save  the  property. 

3.  Marine. — A  contract  of  marine  insurance  is  an  agree- 
ment to  pay  for  the  loss  or  injury  of  a  vessel,  or  the  goods 


Contracts.  231 


carried  in  it,  through  shipwreckj  fire,  piracy,  or  other  peril 
of  the  sea.  Sometimes  the  property  insured  is  named  as  of 
a  certain  value,  in  which  case  neither  party,  in  case  of  loss, 
can  prove  it  to  be  otherwise.  Marine  is  different  from  fire 
insurance  in  this  particular,  that  if  the  vessel  or  cargo  is 
damaged  to  at  least  one-half  its  value,  the  owner  may  give 
up  what  remains  to  the  company  and  claim  a  total  loss. 
This  is  called  abandonment.  In  fire  insurance  this  cannot 
be  done  except  by  special  agreement. 

4.  Life. — A  contract  of  life  insurance  is  an  agreement  to 
pay  a  certain  person  a  certain  sum  of  money  at  the  death 
of  another,  or  when  the  latter  reaches  a  certain  age.  Very 
often  a  husband  is  said  to  insure  his  life  by  a  policy  payable 
to  his  wife,  but  in  reality  in  such  case  the  contract  is  be- 
tween the  company  and  the  wife.  So  one  may  insure  his 
life  in  his  own  favor,  in  which  case  the  policy  is  payable  to 
his  legal  representatives. 

6.  Interest. — The  person  with  whom  the  company  con- 
tracts must  have  some  ownership  or  interest  in  the  subject 
of  insurance.  Thus  in  fire  and  marine  insurance  if  any 
one  but  an  owner,  mortgagee,  or  other  person  having  claim 
upon  the  property  makes  such  a  contract,  it  is  void,  being 
merely  a  wager,  and  all  wagering  contracts  being  illegal. 
So,  in  life  insurance,  the  person  to  whom  the  money  is  to 
be  paid  must  be  dependent  in  some  way  for  support  upon 
the  one  at  whose  death  it  is  to  be  paid,  or  must  be  a  credit- 
or, in  order  to  have  an  insurable  interest. 

6.  Several  Policies  are  often  issued  by  different  com- 
panies covering  the  same  property.  In  fire  insurance  they 
usually  bear  only  a  ratable  proportion  of  the  loss.  In 
marine  insurance  it  is  often  provided  in  the  policy  that  the 
company  shall  only  be  liable  for  such  portion  of  the  loss  as 
prior  insurance  does  not  satisfy. 

7.  Eepresentations,  made  at  the  time  the  insurance  is 


232  Municipal  Laio. 

taken,  if  known  to  be  false,  make  the  contract  void.  This 
is  a  general  rule  of  contracts,  but  is  unusually  important 
in  insurance.  In  marine  insurance  there  is  always  a  war- 
ranty, implied  if  not  expressed,  that  the  vessel  insured,  or 
on  which  the  insured  goods  are  shipped,  is  seaworthy;  that 
is,  able  to  withstand  the  ordinary  dangers  of  the  sea. 


CHAPTER  LIV. 

SHIPPING. 

1.  In  General. — The  rules  of  law  applicable  to  shipping 
are  in  many  respects  the  same  as  those  governing  other 
subjects;  namely,  the  ordinary  rules  of  contracts,  sales, 
agency,  etc.  But  the  property  and  the  situation  in  which 
it  is  placed  are  often  peculiar,  from  which  peculiar  rules 
arise.     A  few  of  these  we  will  speak  of. 

2.  Loss  of  Goods. — The  responsibility  of  carriers  by  sea 
for  loss  or  injury  of  the  goods  is  not  so  great  as  that  of  in- 
land common  carriers.  They  are  not  liable  when  it  is 
caused  by  some  extraordinary  peril  of  the  sea,  as  a  violent 
storm,  fire,  piracy,  etc. ;  but  if  caused  by  the  unseaworthi- 
ness of  the  vessel,  want  of  equipment,  or  through  some 
fault  of  those  navigating  it,  they  are  liable. 

3.  Lien. — This  is  a  common  right  in  connection  with  a 
vessel.  The  carrier  has  a  lien  on  the  goods  he  transports 
for  his  freight:  the  owner  of  the  goods  has  a  lien  upon  the 
vessel  for  any  claim  he  has  for  breach  of  the  contract,  loss 
of  the  goods,  etc. ;  the  seamen  have  a  lien  on  the  vessel  for 
their  wages;  and  any  person  who  furnishes  work  or  materi- 
als in  the  repairing  or  equipment  of  a  foreign  vessel  has  a 


Contracts.  233 


lien  upon  it  for  what  is  due.  This  lien  is  a  right  to  have 
the  vessel  sold,  if  necessary,  to  satisfy  the  claim.  It  is  not 
like  the  common  law  lien,  which  is  a  right  to  retain  pro- 
perty (page  229). 

4.  A  Bill  of  Lading  is  a  document  delivered  by  the  master 
(or  owners)  of  a  vessel  to  one  shipping  goods  upon  it, 
acknowledging  their  receipt  for  transportation.  The  per- 
son shipping  the  goods  sends  this  to  the  one  to  whom  they 
are  sent.  The  latter  may  transfer  it  to  another,  indorsing 
it  either  in  blank  or  to  some  particular  person,  as  in  notes 
and  bills  (page  223).  This  transfers  the  ownership  of  the 
goods;  and  the  final  holder  of  the  bill  of  lading  may 
demand  the  goods  when  they  arrive. 

6.  General  Average. — Whenever  any  portion  of  a  vessel 
or  its  cargo  is  voluntarily  destroyed  or  thrown  overboard  at 
sea  by  the  master,  in  a  case  of  necessity,  in  order  to  save  the 
rest,  and  the  rest  is  saved  thereby,  all  the  owners  of  the 
vessel  and  the  cargo  must  bear  a  portion  of  the  loss  in  prO' 
portion  to  the  value  of  their  property  there.  This  is  called 
general  average.  Its  reason  is  evident,  that  all  obtain  the 
benefit.  It  is  very  common  for  part  of  a  cargo  to  be 
thrown  overboard  to  lighten  a  ship,  but  it  would  be  unjust 
to  make  the  owner  of  that  portion  bear  all  the  loss,  when 
otherwise  both  vessel  and  cargo  would  have  been  lost. 

6.  Salvage. — If  one  vessel  finds  another  vessel  or  goods 
upon  the  sea,  deserted  or  in  great  danger,  and  saves  them, 
a  large  proportion  of  the  property,  or  its  value,  is  distri- 
buted among  the  owner,  master,  and  crew  of  the  saving 
vessel.  This  proportion  is  often  one-third  to  one-half.  It 
is  called  salvage,  and  its  object  is  to  encourage  the  render- 
ing of  such  services. 

7.  Master's  Authority. — The  master  of  a  vessel  has  com- 
plete authority  over  the  crew  and  passengers  when  at  sea. 
He  may  use  force  to  compel  obedience  in  the  management 


234  Municipal  Law. 


of  the  vessel,  and  may  even  take  life  when  necessary. 
When  necessary  for  the  safety  of  the  vessel  or  cargo,  he 
may  sell  or  mortgage  both. 


CHAPTER  LV. 

INTEREST. 

1.  Definition. — Interest  is  a  premium  paid  for  the  use  of 
money  lent.  To  be  interest  it  must  be  a  return  for  money 
lent,  and  not  a  profit  on  money  invested.  Thus  dividends 
upon  raih'oad  or  other  stock,  or  the  profits  of  a  business,  are 
not  interest. 

2.  Rate. — Each  State  declares  by  law  what  shall  be  its 
legal  rate  of  interest.  This  varies  in  the  different  States 
from  six  to  ten  per  cent  per  annum,  being  six  in  most. 

3.  Usury. — The  taking  by  the  creditor  of  a  rate  of  interest 
beyond  that  which  is  established  by  law  is  usury.  Parties 
may  freely  contract  to  take  less  than  the  legal  rate;  but 
when  more  is  contracted  for,  not  only  can  no  more  be  col- 
lected on  the  contractor  obligation  than  the  legal  rate,  but 
in  most  of  the  States  there  is  some  additional  forfeiture. 
In  a  few  the  obligation  is  void,  and  the  payment  of  no 
part  of  the  debt  can  be  enforced  by  law;  in  others,  twice  or 
thrice  the  excess  above  the  lawful  interest  is  forfeited;  and 
in  some  only  the  excess  paid  can  be  recovered. 


Real  Estate.  235 


SECTION   III. 
Real  Estate. 


CHAPTER  LVI. 

ESTATES   IK   REAL   PROPERTY. 

1.  Estate,  in  legal  language,  means  not  the  property 
itself,  but  the  kind  of  interest  which  a  person  has  in  certain 
real  property,  whether  the  absolute  ownership,  a  qualified 
ownership,  or  only  the  right  to  use  it  for  a  time.* 

2.  Estate  in  Fee. — One  is  said  to  have  an  estate  in  fee, 
or  an  estate  in  fee-simple,  in  certain  real  property,  when  he 
has  the  unqualified  ownership  of  it;  the  right  to  use  it  for- 
ever, and  to  sell  it  or  transmit  it  to  his  heirs.  Most  of  the 
land  in  the  country  is  owned  in  this  way.  Two  or  more 
persons  may  own  the  same  land  together  in  fee-simple,  and 
in  such  case  are  called  yom^  owners. 

3.  Estate  for  Life. — A  person  has  an  estate  for  life,  or  a 
life  estate  in  certain  real  property,  when  he  has  the  right  to 
use  it  during  his  own  life  or  the  life  of  some  other  person. 
At  present  life  estates  are  seldom  created  to  depend  on  the 
life  of  any  person  except  the  one  to  whom  the  life  estate  is 
given,  who  is  called  the  life  tenant.  A  widow's  right  of 
dower  has  been  mentioned  (page  210);  this  is  a  life  estate. 

*  The  term  real  estate,  however,  means  the  land  itself.  Estate  is 
also  sometimes  used  to  mean  particular  real  property,  or  even  all  the 
property,  belonging  to  a  particular  person. 


236  Municifpal  Law. 

A  life  tenant  cannot  sell  or  mortgage  the  land,  or  destroy 
houses,  trees,  etc.,  upon  it;  neither  can  his  creditors  take 
it.  This  is  therefore  a  method  often  used  by  parents  to 
provide  for  their  spendthrift  children.  The  life  estate,  i.e. 
the  right  to  use*  the  land,  m-ay  itself  be  sold  or  mortgaged 
the  same  as  other  property. 

4.  Future  Estate. — This  is  a  legal  term,  meaning  the 
interest  which  a  person  has  in  certain  land  to  whom  it 
is  to  go  upon  the  death  of  a  life  tenant,  or  upon  some 
other  contingency.  Thus  the  heirs  of  the  husband  have 
a  future  estate  in  land  set  apart  to  a  widow  for  her 
dower.  If  land  is  given  to  A,  and  on  his  death  to  go 
to  B,  the  interest  which  B  has  during  A's  life  is  a  future 
estate. 

5.  Estate  for  Years. — This  is  a  right  to  possess  and  use 
certain  real  estate  for  a  definite  period  of  time.  The  time 
may  be  any  period — one,  a  hundred,  a  thousand  years,  or 
even  less  than  a  single  year.  The  instrument  creating  this 
kind  of  estate  is  called  a  lease.  Leases  and  the  rights  of 
the  parties  under  them  will  form  the  subject  of  a  later 
chapter  (page  242). 

6.  Trusts. — Sometimes  it  is  desired  to  grant  to  one  the 
benefit  or  income  arising  from  certain  property,  but  not 
the  management  or  disposal  of  it,  on  account  of  his  or  her 
youth,  lack  of  judgment,  or  other  reason.  This  is  done  by 
means  of  a  trusty  which  is  a  grant  of  property  to  one  person 
(called  the  trustee)  to  hold  for  the  benefit  of  another.  The 
powers  and  duties  of  the  trustee  are  different  in  different 
cases.  Sometimes  he  is  merely  to  distribute  property;  in 
other  cases  he  is  to  control  and  manage  the  property,  collect 
the  rent  or  other  incomcj,  and  pay  it  over  to  designated 


others 


*  Use  in  this  connectioa  includes  the  right  to  rent  the  l^M  to 


Real  Estate.  237 


persons;  in  others,  he  even  has  power  to  sell  the  land. 
These  powers  are  governed  by  the  deed  or  will  creating  the 
trust.  * 


CHAPTER  LVIL 

DEEDS  AND  MORTGAGES. 

1.  A  Deed  of  land  is  a  written  instrument  by  which  the 
ownership  of  the  land  is  transferred  to  a  purchaser,  f  A 
deed  is  a  contract,  and  we  have  seen  that  such  contracts 
must  be  in  writing  (page  206). 

2.  A  Mortgage  of  land  is  in  form  a  deed,  made  as  security 
for  the  payment  of  a  debt,  and  to  become  void  on  its  pay- 
ment. It  does  not,  however,  really  convey  the  ownership, 
and  usually  the  owner  keeps  possession  of  the  property.  It 
also  must  be  in  writing. 

3.  Contents. — A  deed  or  mortgage  of  land  must,  in  gene- 
ral, (1)  name  the  person  who  is  to  take,  (2)  describe  the 
property,  (3)  name  the  interest  that  is  conveyed,!  (4)  be 
signed  by  the  person  conveying,  (5)  be  sealed,  and  (6)  be 
delivered.  Other  things  are  often  included  in  a  deed,  but 
without  these  it  is  without  effect.  The  wife  of  the  owner 
also  must  sign,  or  otherwise  she  will  be  entitled  at  his  death, 
if  she  outlive  him,  to  a  life  estate  in  one-third  of  the  pro- 
perty (page  210). 

*  Personal  property  is  often  held  in  trust  in  the  same  Avay.  So, 
also,  there  may  be  a  life  interest,  or  future  interest,  in  personal  pro- 
perty :  but  they  are  not  common.  It  is,  however,  often  rented,  like 
land. 

f  If  it  conveys  any  estate  greater  than  an  estate  for  years  it  is  a 
deed;  otherwise  it  is  a  lease  (Chap.  LVI.). 

X  Whether  full  ownership,  life  estate,  etc. 


238  Municipal  Law. 


4.  Delivery. — It  is  important  to  remember  that  delivery 
to  the  other  party,  or  to  some  one  in  his  belialf,  is  necessary 
to  any  deed  or  mortgage,  as  it  is  to  every  contract.  It  is 
the  act  which  gives  efficacy  to  all  the  rest. 

6.  Eecording. — After  delivery  the  purchaser  should  have 
his  deed  or  mortgage  recorded  in  the  office  of  the  recorder 
of  the  county  (or  town)*  in  which  the  land  lies.  This  is 
not  necessary  as  to  the  gj*antor  (the  person  conveying).  An 
unrecorded  deed  is  good  as  against  his  claim,  or  that  of  his 
heirs,  to  the  land.  But  if  the  grantor  after  giving  a  deed 
to  one  should  fraudulently  give  another  (or  a  mortgage)  of 
the  same  land  to  a  second  person,  who  should  have  no 
notice  of  the  first,  and  who  should  get  his  deed  or  mort- 
gage on  record  first,  the  second  person  would  have  a  prior 
claim  to  the  land. 

6.  Acknowledgment. — A  recorder  or  register  may  not 
record  a  conveyance  of  land  without  proof  that  it  was  ex- 
ecuted by  the  person  named  in  it  as  the  maker  or  grantor; 
and  if  he  does,  the  record  is  a  nullity.  This  proof  consists, 
usually,  in  a  certificate  of  a  proper  officer,  on  the  back  or 
at  the  end  of  the  deed,  stating  that  the  person  so  named 
appeared  before  him  and  acknowledged  that  he  was  the 
person  who  had  executed  the  deed.  In  general,  judges  of 
courts  and  justices  of  the  peace,  mayors  and  aldermen  of 
cities,  notaries  public,  and  commissioners  of  deeds  appointed 
for  that  special  purpose,  may  take  acknowledgments.  In 
New  York  and  some  other  States  the  acknowledgment 
may  be  dispensed  with,  and  the  execution  of  the  deed  may 
be  proved  by  an  affidavit  of  a  subscribing  witness.  Deeds 
duly  acknowledged  or  proved  are,  with  the  acknowledg- 
ments or  proofs,  copied  by  the  recorder,  word  for  word,  in 
books  provided  for  that  purpose.  But  the  acknowledg- 
ment is  not  necessary  as  against  the  grantor. 


*  See  page  52. 


Real  Estate.  239 


7.  Covenants. — A  purchaser  of  any  kind  of  property, 
real  or  personal,  obtains  only  such  title  as  the  seller  had. 
If  it  turns  out  to  belong  to  another,  that  other  has  a  right 
to  it.  We  have  seen  that  in  personal  property  a  seller  im- 
pliedly warrants  that  he  has  good  title,  and  if  he  has  not 
the  purchaser  may.  sue  him  for  the  damage  (page  219). 
There  is  no  such  implied  warranty  in  real  estate.  There- 
fore it  is  usual  for  a  seller  to  put  in  the  deed  an  express 
warranty  to  the  same  effect.  There  are  often  other  cove- 
nants in  a  deed,  such  as  tliat  there  are  no  taxes,  mortgages, 
or  other  incumbrances  standing  against  it.  These  do  not 
give  the  purchaser  any  better  right  to  keep  the  land  than 
a  deed  without  them  does,  but  only  a  right  to  call  upon 
the  seller  for  reimbursement. 

8.  Foreclosure. — This  is  a  proceeding,  generally  a  suit 
in  a  court,  by  which  the  claim  of  a  person  holding  a  mort- 
gage upon  land  is  enforced.  The  land  either  becomes  his 
property  or  it  is  sold,  and  the  claims  or  liens  upon  it  are 
paid  in  the  order  of  their  priority. 


CHAPTER  LVIII. 

APPURTEN^AKCES. 

1.  Appurtenances  are  minor  rights,  or  property,  connected 
with  real  estate,  which  pass  to  the  successive  owners  with 
the  land.  Thus  a  transfer  of  land  carries  with  it  all  houses, 
trees,  and  everything  standing  or  growing  upon  it,  and  all 
mines  and  quarries  beneath  the  surface.  The  transfer  of 
a  house  carries  with  it  the  doors,  blinds,  keys,  etc.,  although 
they  may  be  at  the  time  temporarily  detached,   and  not 


240  Municipal  Law. 


upon  the  property.      Nor  is  it  necessary  to  name  these 
things  in  the  deed. 

2.  Eights  over  Highway. — The  owners  of  land  adjoining 
highways  own  the  land  to  the  centre  of  the  road:  the  pub- 
lic have  only  a  right  of  passage  while  the  road  is  continued. 
The  owners  of  the  soil  may  maintain  a  suit  against  any 
person  who  encroaches  upon  the  road,  or  digs  up  the 
soil,  or  cuts  down  trees  growing  on  the  side  of  the  road. 
They  may  carry  water  in  pipes  under  it,  and  have  every 
use  of  it  that  does  not  interfere  with  the  rights  of  the 
public. 

3.  Rights  over  Streams. — Every  proprietor  of  lands 
through  which  a  stream  flows  has  naturally  a  right  to  the 
use  of  the  water  that  flows  in  the  stream.  Each  may  use 
the  water  while  it  runs  upon  his  own  land,  for  a  mill  or 
other  purpose;  but  he  cannot  diminish  its  volume  or  give 
it  another  direction;  and  he  must  return  it  to  its  ordinary 
channel  when  it  leaves  his  land.  He  cannot,  by  dams  or 
any  obstruction,  cause  the  water  injuriously  to  overflow 
the  land  of  the  neighbor  above  him,  nor  so  use  or  apply  it 
as  materially  to  injure  his  neighbor  below  him.  If  a  stream 
flows  between  the  lands  of  two,  each  owns  the  land  to  the 
centre  of  the  stream,  but  they  must  use  the  whole  stream 
together  as  joint  owners.* 

4.  Another  kind  of  appurtenance  is  where  the  owner  of 
certain  land  acquires  an  additional  right  over  land  belong- 
ing to  another,  such  as  the  right  of  passing  over  that  land 
for  himself  and  whomever  he  permits,  the  right  to  take 
water  or  earth  from  it,  to  pasture  cattle  upon  it,  to  lay 
pipes  through  it,  etc.     Such  rights  once  acquired  do  not 


*  The  rule  as  to  navigable  rivers  is  different.  They  belong  to  the 
State,  and  the  land  owners  have  no  rights  in  them  beyond  those  of 
other  persons. 


Real  Estate.  241 


generally  belong  to  the  person  acquiring  them  personally, 
but  as  the  owner  of  the  land  they  benefit.  When  he  trans- 
fers the  land  they  pass  with  it  to  the  purchaser  without 
being  named.  Thus  we  come  to  say  they  are  appurtenant 
to  the  land. 

5.  Right  of  Way. — This  is  the  right  which  the  owner  of 
certain  land  has  to  pass  over  the  land  of  another.  It  may 
be  a  right  to  pass  with  a  team,  or  only  to  pass  on  foot. 
Without  it  no  person  has  a  right  even  to  step  upon 
another's  land  or  enter  his  house  without  his  permission. 
But  a  right  of  way  is  something  more  than  a  permission 
which  maybe  revoked  at  anytime.  It  is  an  interest  in 
the  land  itself,  and  cannot  be  revoked.  When  a  highway 
is  out  of  repair  or  obstructed  by  snow,  a  flood,  or  in  any 
way,  the  public  has  a  temporary  right  of  way  upon  the  ad- 
joining land.  A  right  of  way  must  be  used  for  no  other 
purpose  than  passage. 

6.  Party  Walls. — In  cities  houses  are  often  built  having 
their  side  Avails  in  common.  The  wall  stands  half  upon 
one  lot  and  half  upon  the  other,  and  each  owner  has  the 
right  to  insert  the  timbers  of  his  house  into  it.  Neither 
has  the  right  to  take  down  his  half  of  the  wall  without  the 
consent  of  the  owner  of  the  other  lot.  In  other  words,  each 
lot  has  the  right  over  the  other  lot  to  have  the  whole  wall 
stand.  Without  such  right  an  owner  can  do  as  he  pleases 
with  what  stands  on  his  own  land.  Such  walls  are  called 
party  walls. 

7.  Acquisition  of  Right. — There  are  two  common  ways  by 
which  such  rights  as  rights  of  way,  party  walls,  and  other 
rights  which  one  estate  enjoys  over  another  may  be  acquired, 
(1)  by  grant,  and  (2)  by  long  use.  The  grant  of  such  a  right 
n)ust  be  by  some  written  document,  as  it  is  a  contract  for 
the  sale  of  an  interest  in  land  (page  207).  But  such  right 
may  also  be  obtained  by  its  enjoyment  for  twenty  years 


242  Municipal  Law. 


without  disturbance,  though  it  was  not  originally  granted.* 
Thus  if  the  owners  of  a  piece  of  land  have  for  twenty  years 
passed  over  that  belonging  to  another,  claiming  a  right  to 
do  so,  at  the  end  of  that  time  they  obtain  the  right.  The 
enjoyment  is  deemed  to  have  been  uninterrupted,  whether 
it  has  been  continued  from  ancester  to  heir  and  from  seller 
to  buyer,  or  whether  the  use  has  been  enjoyed  during  the 
entire  period  by  one  person. 

8.  Loss  of  Right. — As  these  rights  may  be  obtained  by 
grant  and  by  use,  so  they  may  be  lost  in  two  ways:  by  being 
conveyed  back  to  the  one  from  whom  they  came,  and  by 
not  being  used  for  twenty  years. 


CHAPTER  LIX. 

LANDLORD   AND   TENANT. 

1.  Lease. — The  relation  of  landlord  and  tenant  arises 
where  one  person  occupies  land  owned  by  another,  under 
an  agreement  between  them.  Usually  the  tenant  is  to  pay 
for  its  use.  It  is  therefore  a  contract  relation,  and  subject 
to  all  the  rules  of  contracts  (Chap.  XLV.).  The  contract 
creating  the  relation  is  called  a  lease.  A  lease  if  for  more 
than  a  year  must  be  in  writing  and  signed,  if  for  only  a 
year  or  less  it  may  be  oral.f  Sealing  is  not  necessary. 
Sometimes  the  tenancy  is  for  no  definite  period  (sec.  9). 

*  This  is  merely  one  application  of  the  general  rule,  that  a  person 
who  wishes  to  enforce  his  rights  must  begin  his  suit  within  a  certain 
period  (page  207).  In  the  same  way,  if  a  person  allows  anotlier,  who 
claims  to  be  owner,  to  occupy  his  land  for  twenty  years,  the  true 
owner  loses  his  land. 

f  In  some  States  a  lease  for  three  years  or  less  may  be  oral. 


Real  Estate.  243 


2.  Rent  is  a  return  made  by  the  tenant  to  the  landlord 
for  the  use  of  the  land.  Usually  it  is  in  money,  periodically 
paid,  but  may  be  in  services,  profits,  or  anything  else.  The 
parties  may  make  any  agreement  as  to  the  amount  of  rent, 
and  when  it  shall  be  due.  If  there  is  no  agreement  as  to 
amount,  the  tenant  must  pay  what  the  use  of  the  property 
is  reasonably  worth.  As  to  the  time  of  payment,  where 
there  is  no  special  agreement  to  the  contrary,  rent  is  due 
yearly,  half-yearly,  or  quarterly,  according  to  the  usage  of 
the  country.  Where  there  is  no  particular  usage,  the  rent 
is  due  at  the  end  of  the  year.  If  the  landlord  does  anything 
wrongfully  to  render  any  part  of  the  premises  useless  to  the 
tenant,  the  latter  may  leave,  and  no  rent  is  due. 

3.  Destruction  of  Property. — Where  there  is  an  express 
agreement  to  pay  rent,  the  tenant  cannot  avoid  payment 
even  if  the  premises  are  destroyed  by  fire  or  flood,  even 
without  any  fault  on  his  part.*  Hence,  if  land  should  be 
leased  with  a  flock  of  sheep,  and  the  sheep  should  die,  the 
full  rent  must  be  paid.  But  neither  the  landlord  nor 
tenant  is  bound  to  rebuild  houses  destroyed  by  an  acciden- 
tal fire. 

4.  Eviction  is  the  depriving  one  of  lands  of  which  he  is 
in  possession.  A  landlord  has  the  right  to  evict  his  tenant 
either  when  the  latter  fails  to  pay  any  portion  of  the  rent 
due  or  in  any  way  injures  the  property.  He  may  also  do 
it  for  any  cause,  for  which  he  reserves  the  right  in  the 
lease.  But  this  eviction  is  a  process  of  law.  A  suit  is 
brought,  and  the  sheriff  puts  the  landlord  in  possession. 
No  landlord  has  a  right  to  take  possession  of  his  premises 
personally,  without  the  tenant's  consent. 


*  In  some  States  this  rule  is  changed  so  as  to  relieve  a  tenant 
from  paying  rent  when  the  premises  are  destroyed  without  his  fault, 
and  he  surrenders  them. 


244  Municipal  Law. 


5.  Sale  of  Property. — When  property  has  been  rented 
and  is  afterward  sold  or  in  any  way  transferred  by  the  land- 
lord to  another  person,  such  transaction  does  not  in  any 
way  atfect  the  tenant's  rights  or  liabilities.  He  retains  the 
property,  and  must  pay  the  rent  to  the  new  landlord,  who 
is  substituted  to  all  the  rights  of  the  original  landlord.  But 
if  the  land  should  be  recovered  from  the  tenant  by  a  person 
having  a  better  title  than  that  derived  from  his  landlord, 
he  is  not  liable  for  rent  after  his  use  of  the  land  has  ceased. 

6.  Repairs. — A  landlord  is  under  no  obligation  to  his 
tenant  to  make  repairs  to  the  property,  unless  he  has  made 
a  special  agreement  to  that  effect.  But  the  tenant  must 
deliver  up  the  premises  in  as  good  a  condition  as  that  in 
which  they  were  when  he  took  them,  except  that  he  will 
not  be  liable  for  the  ordinary  wear  and  tear.  He  will 
therefore  be  obliged  to  make  ordinary  repairs,  such  as  the 
keeping  of  fences  in  order,  replacing  broken  doors  or  win- 
dows, etc.  But  extraordinary  repairs,  such  as  the  supply- 
ing of  a  new  roof  or  repairs  necessitated  by  an  accidental 
fire,  the  tenant  will  not  be  obliged  to  make. 

7.  Crops. — A  tenant  has  of  course  the  right  to  take  all 
crops  reaped  during  his  tenancy.  A  tenant  for  a  definite 
time,  whose  lease  expires  after  the  land  is  sown  or  planted, 
and  before  harvest,  is  not  entitled  to  the  crop;  for,  knowing 
that  his  lease  would  expire  before  harvest  time,  he  might 
have  avoided  the  loss  of  his  labor.  But  if  the  lease  is  for 
an  indefinite  time,  or  depends  upon  an  uncertain  event, 
and  is  terminated  before  harvest,  the  tenant  is  entitled  to 
the  crop.    , 

8.  Assignment  by  Tenant. — A  tenant  may  assign  his 
whole  interest  to-  another,  unless  restrained  by  agreement 
not  to  assign  without  leave  of  the  landlord.  And  he  may 
underlet  for  any  less  number  of  years  than  he  himself  holds, 
or  any  portion  of  the  land  that  he  holds.     The  difference 


Real  Estate,  245 


between  an  assignment  and  a  sub-lease  is  that  in  the  former 
the  whole  interest  is  conveyed,  in  the  latter  only  a  portion. 
They  are  very  different  in  their  effect.  In  an  assignment  the 
person  who  takes  the  lease  becomes  liable  for  the  rent  to  the 
landlord,  though  the  original  tenant  is  not  thereby  released. 
In  a  sub-lease  the  under-tenants  are  not  liable  for  rent  to 
the  landlord,  but  merely  to  their  landlord,  the  tenant.  The 
landlord,  however,  retains  all  the  rights  he  has  against  the 
tenant,  and  may  evict  him  and  all  the  under-tenants,  if  the 
original  lease  be  not  complied  with.  To  save  themselves 
from  dispossession  the  under-tenants  may  pay  their  rent  to 
the  original  landlord. 

9.  Notice  to  Quit. — This  is  a  notice  by  the  landlord  to 
the  tenant  to  leave  the  premises.  In  ordinary  tenancies 
for  a  definite  period,  a  month,  a  year,  etc.,  no  notice  to  quit 
is  necessary.  If  the  tenant  does  not  leave  at  the  expiration 
of  the  time,  the  landlord  may  immediately  take  legal  pro- 
ceedings to  evict  him.  But  where  the  period  is  uncertain, 
as  where  the  tenancy  is  to  continue  at  the  pleasure  of  the 
landlord,  this  notice  must  be  given  before  eviction  can  be 
had.  The  time  of  the  notice  is  generally  at  least  as  long  as 
a  month,  and  in  some  cases  six  months.  The  purpose  is  to 
protect  the  tenant  from  being  suddenly  turned  out  of  his 
home. 


CHAPTER  LX. 

DISTKIBUTIOK   OF   PROPEKTY   UPON^   DEATH. 

a.  Wills, 

1.  "WilL — It  is  a  general  rule  that  a  person  may  dispose 
of  all  his  property  upon  his  death  in  any  way  he  wishes, 


246  Municipal  Law. 

even  to  disinheriting  his  own  children.*  This  he  does  by 
means  of  a  document  called  a  will.  The  person  making  it 
is  called  the  testator.  If  no  will  is  left  the  property  is  dis- 
tributed among  certain  relatives.  In  such  case  the  person 
is  said  to  die  intestate. 

2.  Who  May  Make. — The  rule  is  that  every  person  of 
full  age  and  sound  mind  may  make  a  will.  An  exception  is 
that  in  some  States  married  women  may  not.  In  many  of 
the  States  personal  estate  may  be  willed  at  an  earlier  age. 
If  upon  the  probate  of  a  will  (page  77)  it  is  shown  that  the 
testator  was  of  unsound  mind,  or  made  it  under  undue  in- 
fluence from  any  one,  it  will  be  declared  void. 

3.  Formalities. — A  will  must  be  made  in  the  mode  pre- 
scribed by  the  law,  or  it  is  void.  In  the  first  place,  it  must, 
in  general,  be  written,  f  It  must  be  signed  by  at  least  two, 
in  some  States  three,  attending  witnesses,  in  whose  pres- 
ence the  testator  must  sign  the  will,  or  acknowledge  that 
he  signed  it,  and  declare  it  to  be  his  last  will  and  testament. 

4.  Revocation. — A  will  has  no  effect  until  after  death. 
Before  death  the  testator  may  revoke  or  alter  it  in  any  par- 
ticular. Ee vocation  may  be  made  in  two  ways  :  (1)  by 
burning,  tearing,  or  otherwise  purposely  destroying  it,  and 
(2)  by  making  a  new  will  with  the  same  formalities  ex- 
pressly revoking  the  prior  will.  If  a  will  is  accidentally 
destroyed,  and  there  is  no  intent  to  revoke  it,  it  still  legally 
exists.  If  a  second  will  is  made  and  does  not  expressly  re- 
voke the  former,  both  stand  as  far  as  they  do  not  contra- 
dict each  other;  but  as  far  as  they  are  antagonistic  the  later 
one  prevails,  as  where  both  dispose  of  the  same  property 
but  in  different  ways.     If  particular  property  is  disposed  of 

*  In  some  States  this  is  subject  to  exception,  so  that  children  may 
not  be  wholly  disinherited,  or  a  wife  left  unprovided  for. 

f  Oral  wills  can  only  be  made  by  soldiers  in  active  service,  or 
sailors  »t  sea. 


Real  Estate.  247 


in  a  will,  but  is  sold  by  the  testator  before  his  death,  the 
will  is  in  that  respect  void.  * 

5.  A.  Codicil  is  an  addition  or  a  supplement  to  a  will, 
and  must  be  executed  with  the  same  formalities.  It  is  no 
revocation  of  the  will,  except  in  the  precise  degree  in  which 
they  are  inconsistent. 

t.  Intestacy, 

6.  Distribution  of  Property. — The  order  and  proportion 
in  which  the  relatives  of  a  deceased  person,  who  leaves  no 
will,  share  in  his  property,  are  regulated  by  the  statutes  of 
the  several  States,  which  are  not  uniform.  But  it  is  a  gen- 
eral rule  that  all  brothers  and  sisters,  when  entitled,  share 
alike;  i.e.  there  is  no  preference  of  the  first-born  over  the 
others,  nor  of  the  male  over  the  female.  \ 

7.  As  to  Real  Estate,  if  there  are  children  they  take  it 
all,  or  if  any  are  dead  their  children  take  their  parents' 
shares.  If  there  are  no  direct  descendants,  in  some  States 
the  father  or  mother  of  the  intestate  will  be  entitled,  in 
others  the  brothers  and  sisters.  In  some  the  husband  or  wife 
is  entitled  to  a  portion  whether  there  are  children  or  not. 
There  is  no  proceeding  before  the  probate  court  as  to  real 
estate.  The  person  or  persons  inheriting  are  entitled  to  the 
immediate  possession. 

8.  As  to  Personal  Property  the  rules  of  distribution  are 
in  general  about  the  same  as  in  case  of  real  estate;  though 


*  In  some  States  marriage  or  the  birth  of  a  ch/  Id  will  revoke  a 
will,  so  that  the  wife  or  husband  or  child  will  nrt  remain  unpro- 
vided for. 

f  An  lieir  is  one  entitled  to  the  real  estate  of  anc  ther  who  dies  in- 
testate. Neither  one  who  receives  personal  prop"^rty  in  that  way, 
nor  one  who  receives  any  kind  of  property  unde/  a  will  is  properly 
called  an  heir. 


248  Municipal  Law. 


in  some  States  they  differ  somewhat.     Those  entitled  do 
not  take  possession  immediately  on  death.     An  administra- 
tor is  appointed  by  the  court,  and  he  takes  possession  of  it 
all.     After  a  certain  time  he  distributes  it  among  those  er 
titled  (page  78). 


Criminal  Law.  249 


SECTION  IV. 
Criminal  Law 


CHAPTER  LXI. 

CKIMES. 

1.  A  Crime  is  an  offence  against  the  public,  the  whole 
body  of  the  people,  because  it  tends  to  disturb  the  public 
peace  and  to  overturn  the  body  of  laws  which  the  public  has 
established  for  the  security  of  life  and  property  of  each  per- 
son. The  purpose  of  the  penalty  inflicted  is  not  expiation, 
but  simply  to  protect  the  community  against  its  future 
commission.  Almost  every  crime  is  also  the  violation  of 
some  private  right  for  which  the  private  individual  has  his 
remedy  (page  80,  note) ;  but  usually  the  public  penalty  is 
so  great  that  the  former  is  lost  sight  of,  and  very  often  is 
not  enforced.  * 

2.  The  Laws  of  each  State  define  the  crimes  of  which  it 
takes  cognizance,  and  prescribe  the  punishments.  The 
definitions  given  in  this  chapter  agree  substantially  with 
those  of  similar  crimes  in  every  State  in  the  Union.  The 
punishment  for  the  same  crime  is  not  the  same  in  all  the 
States,  nor  is  there  in  any  State  an  equal  measure  of  pun- 
ishment inflicted  in  all  cases  for  the  same  offence.  The 
laws  usually  declare  the  longest  and  the  shortest  term  of 

*  Ignorance  of  the  law  excuses  no  one.    If  it  did,  no  law  could  be 
enforced. 


250  Municipal  Law. 


imprisonment,  and  the  highest  and  lowest  fine  for  each 
offence,  leaving  the  exact  measure  of  punishment,  except 
for  crimes  punishable  by  death,  to  the  discretion  of  the 
judges  to  be  fixed  according  to  the  aggravation  of  the 
offence. 

3.  Capital  Punishment  is  punishment  by  death,  and  the 
crimes  for  which  it  is  inflicted  are  called  capital  crimes. 
These  are  now  very  few,  in  many  States  only  treason  and 
murder.  In  a  few  States  capital  punishment  has  been 
abolished.  For  other  crimes  the  punishment  ranges  from 
imprisonment  for  life  in  case  of  the  most  heinous  crimes, 
to  imprisonment  for  a  few  days  in  case  of  the  slightest  mis- 
demeanors. 

4.  Treason  is  levying  war  in  any  State  against  the  peo- 
ple of  the  State;  or  adhering  to  enemies  of  the  State  while 
it  is  engaged  in  war  Avith  them,  and  giving  them  aid  and 
comfort.* 

6.  Murder  is  the  killing  of  a  human  being  deliberately 
and  maliciously,  and  with  intent  to  effect  death;  or  killing 
a  person  in  committing  some  otlier  crime,  though  not  with 
a  design  to  effect  death.  The  less  aggravated  cases  of 
murder  are  in  some  States  distinguished  as  murder  in  the 
second  degree,  and  punished  by  imprisonment  for  a  long 
term,  or  for  life. 

6.  Manslaughter  is  killing  a  person  either  upon  a  sud- 
den quarrel,  or  unintentionally  while  committing  some  un- 
lawful act  not  a  crime.  The  difference  between  murder 
and  manslaughter  is  in  the  premeditated  malice  of  the 
former,  f 

*  This  is  treason  against  a  State.  Treason  against  the  United 
States  is  another  crime  (page  176). 

f  Homicide  means  mankilling  in  general.  When  a  crime  it  is 
either  murder  or  manslaughter.  Homicide  is  lawful  when  com- 
mitted (1)  by  an  officer  when  necessary  in  the  execution  of  his  duty 


Criminal  Law,  251 


7.  Arson  is  maliciously  burning  any  dwelling-house, 
shop,  barn,  or  any  other  building,  the  property  of  another. 
Arson  in  the  first  degree,  which  is  burning  an  inhabited 
dwelling  in  the  7iight-tvne,  is  in  some  States  punishable 
with  death. 

8.  Burglary  is  forcibly  breaking  into  and  entering  in 
the  night-time  the  dwelling-house  of  another  with  intent 
to  commit  a  crime. 

9.  Robbery  is  the  taking  of  personal  property  from 
another  in  his  presence  and  against  his  will,  by  violence, 
or  by  putting  him  in  fear  of  immediate  injury  to  his  person. 

10.  Larceny,  popularly  called  theft  or  stealing ,  is  the 
wrongful  taking  of  another's  personal  property,  with  the 
intent  to  deprive  him  of  it  permanently.  In  some  States 
the  stealing  of  property  above  a  certain  amount  in  value  is 
called  grand  larceny,  and  is  a  state-prison  offence.  If  the 
value  of  the  property  stolen  is  of  less  amount  the  offence 
is  called  petit  larceny,  and  is  punished  by  fine  or  imprison- 
ment in  jail  or  both. 

11.  Embezzlement  is  fraudulently  taking  with  intent  to 
apply  to  one's  own  use  what  is  intrusted  to  him  by  another. 
To  buy  or  receive  property  knowing  it  to  have  been  em- 
bezzled, is  to  be  guilty  of  the  same  offence.  Embezzlement 
is  usually  punishable  in  the  same  manner  as  larceny  of  the 
same  amount. 

12.  Forgery  consists  in  falsely  making,  counterfeiting, 
or  altering  any  instrument  in  writing  with  intent  to  de- 
fraud. The  word  counterfeiting  is  generally  applied  to 
making  false  coin  or  paper  money,  or  in  passing  them;  but 
it  is  a  kind  of  forgery. 


to  take  or  prevent  the  escape  of  a  prisoner,  (2)  by  a  private  person  in 
self-defence  or  in  preventing  any  atrocious  crime,  (3)  by  any  one 
tJirough  unavoidable  accident  without  fault  on  his  part 


252  Municipal  Law. 

13.  Perjury  is  willfully  swearing  or  affirming  falsely  to 
any  material  matter,  upon  an  oath  legally  administered. 
Subornation  of  perjury  is  instigating  another  to  swear 
falsely;  it  is  punishable  as  perjury. 

14.  Bribery  is  the  offering  money  or  other  reward  to  a 
public  officer  to  influence  his  Yote  or  judgment,  or  its  ac- 
ceptance by  the  officer  for  such  purpose. 

16.  Bigamy  is  the  crime  of  having  two  or  more  wives, 
and  is  also  called  polygamy.  These  words,  in  law,  are 
applied  also  to  women  having  two  or  more  husbands 
(page  209). 

16.  Other  Crimes. — Besides  those  already  named  there 
are  many  other  acts  made  crimes  in  most  States.  The  fol- 
lowing are  some  of  them:  Intentionally  m«mfn^  another 
by  disabling  any  member  or  limb;  inveigling  or  hidnap- 
ping;  decoying  and  taking  away  children;  exposing  chil- 
dren in  the  street  to  abandon  them;  openi?ig  a  grave  and 
removing  a  dead  body  for  any  unlawful  purpose,  or  pur- 
chasing such  body  knowing  it  to  have  been  unlawfully  dis- 
interred; aiding  a  prisoner  to  escape;  duelling;*  assault 
and  lattery;  imprisonment  without  authority;  libel;  riot' 
ing.  There  are  also  numerous  smaller  misdemeanors  and 
immoralities,  such  as  willful  trespasses  and  injuries  to  pro- 
perty, drunkenness,  gambling,  indecent  exposure,  etc. 

17.  Attempts  to  commit  a  crime,  though  unsuccessful, 
are  also  criminal,  but  the  punishment  is  usually  lighter. 

18.  Accessories  are  those  concerned  in  the  commission 
of  crimes  though  not  actually  committing  them  themselves. 
He  who  advises,  procures,  or  commands  another  to  commit 
a  felony,  is  called  an  accessory  before  the  fact,  and  is  pun- 
ished in  the  same  manner  as  the  principal.  One  who  con- 
ceals the  offender  knowing  that  an  offence  has  been  com- 

*  If  either  party  be  killed  \t  is  in  many  States  murder 


Remew  Questions.  253 

mitted,  or  gives  him  any  aid  to  prevent  his  being  brought 
to  punishment,  is  an  accessory  after  the  fact,  and  also  sub- 
ject to  punishment. 

19.  Arrests  may  and  should  be  made  by  any  one,  though 
a  private  person,  in  whose  presence  a  heinous  crime  or 
breach  of  the  peace  is  committed.  When  no  one  witnesses 
the  commission  arrest  can  only  be  made  by  an  officer  pro- 
vided with  a  warrant  against  the  offender. 


EEYIEW  QUESTIOI^S. 


Municipal  Law. 


Civil  Rights  in  General. 

1.  What  is  municipallaw  ?    Is  it  regulated  by  State  or  Nation? 

2.  What  is  common  law?     Statute  law? 

3.  Name  and  describe  the  three  fundamental  rights  of  persons. 

4.  What  is  slander?    Libel?     How  is  each  punished? 

5.  Name  the  public  relative  civil  rights.     How  enforced? 

6.  Describe  the  duties  and  rights  of  a  parent  toward  his  child. 

7.  What  is  a  guardian?    His  duties  and  rights?    An  apprentice? 

Contracts. 

8.  What  is  a  contract?     Describe  the  different  kinds. 

9.  What  is  the  fundamental  rule  of  contracts? 

10.  What  persons  need  not  fulfill  their  contracts?    Why? 

11.  If  an  offer  is  made  and  accepted  by  mail,  at  what  moment  is  the 

contract  complete? 

12.  What  is  the  considerations  of  a  contract?     State  the  rule  as  to 

consideration. 

13.  In  case  of  fraud  or  force,  may  the  party  upon  whom  it  is  prac- 

ticed enforce  the  contract?    May  the  other?    Why? 


254  Review  Questions, 


14.  What  contracts  must  be  in  writing?    Why? 

15.  How  long  may  one  delay  to  sue? 

16.  Name  the  three  kinds  of  remedy  for  breach  of  contract. 

17.  At  what  age  is  marriage  lawful?     What  relatives  may  marry? 

18.  Is  a  ceremony  of  marriage  necessary? 

19.  State  the  former  rule  as  to  the  effect  of  marriage  upon  the  wife's 

property.     The  present  rule. 

20.  What  is  dower?    Does  it  exist  now? 

21.  What  is  divorce?     For  what  causes  granted? 

22.  What  is  an  agent?    Name  some  classes. 

23.  State  the  fundamental  rule  of  agency. 

24.  When  is  an  agent  himself  liable  to  third  parties? 

25.  What  is  partnership?     State  its  fundamental  rule. 

26.  May  a  partner  sell  his  interest  to  any  one? 

27.  State  how  partnerships  may  be  dissolved. 

28.  What  is  a  sale?    Barter? 

29.  If  goods  are  sold,  but  destroyed  without  fault  before  delivery, 

who  must  bear  the  loss? 
3D.  When  must  a  contract  of  sale  of  goods  be  written?    When  not? 
'31.  If  property  is  stolen  and  sold  to  one  who  is  ignorant  of  that  fact, 

to  whom  does  it  belong?     State  the  exception. 

32.  When  does  a  seller  of  goods  warrant  the  title  ?   When  the  quality  ? 

33.  May  one  give  away  all  his  property?     Who  may  complain? 

34.  State  the  effect  of  non-delivery  in  a  gift.    In  a  sale.     In  a  barter. 

35.  Deiine  a  promissory  note.    A  bill  of  exchange.    A  maker.    A 

payee.    A  drawer.    A  drawee.     An  acceptor. 

36.  Describe  acceptance.     Indorsement.     Blank  indorsement. 

37.  When  may  a  note  be  indorsed?     A  bill? 

38.  AVhat  is  an  accommodation  note?    May  the  payee  of  such  a  note 

sue  the  maker?    Who  may? 

39.  Explain  negotiability,  and  its  reason. 

40.  What  are  days  of  grace? 

41.  To  whom  is  an  indorser  liable?    Who  are  liable  to  him? 

42.  Wiiat  two  things  are  necessary  to  make  an  indorser  liable? 

43.  State  the  rule  as  to  skill  and  care,  in  services  rendered.     In  the 

use  of  property  of  another. 

44.  What  is  a  common  carrier?    Describe  his  liability  as  to  goods 

As  to  passengers. 

45.  Name  and  describe  the  different  kinds  of  lien. 

46.  Define  the  three  kinds  of  insurance. 

47.  What  is  abandonment  in  marine  insurance? 

48.  Who  may  insure  property?     Who  may  insure  life? 

49.  When  are  ship  owners  liable  for  the  loss  of  goods? 

50.  What  is  a  bill  of  lading?    Describe  its  use. 

51.  What  is  general  average?     Salvage? 

52.  What  is  usury?    Its  effect?   : 

Beal  Estate. 

53.  What  is  an  estate  in  fee?    Estate  for  life?    Future  Estate? 

Estate  for  years?    Trust? 


Remew  Questions.  256 


54.  May  a  life  tenant  sell  the  land?    May  he  mortgage  it? 

55;  What  is  a  deed?    A  mortgage?    May  they  be  oral? 

56.  State  the  necessary  contents  of  a  deed  or  mortgage.  Is  delivery 
necessary? 

67.  What  is  the  purpose  and  effect  of  recording?  Of  acknowledg- 
ment? 

58.  What  is  a  covenant  of  warranty  in  a  deed?    Its  effect? 

59.  What  are  appurtenances?    Name  some  common  ones. 

60.  What  is  a  lease?    What  leases  may  be  oral? 

61.  When  may  a  landlord  evict  his  tenant?    In  what  way? 

62.  What  effect  has  a  sale  of  the  property  upon  a  prior  lease? 

63.  Who  must  repair  leased  property? 

64.  State  the  difference  between  an  assignment  of  a  lease  and  a  sub- 

lease.    To  whom  must  the  new  tenants  pay  rent  in  each  case? 

65.  When  is  notice  to  quit  necessary? 

66.  Who  may  make  wills? 

67.  May  children  be  disinherited  by  will? 

68.  How  is  a  will  made?    How  revoked? 

69.  Who  receives  the  property  of  one  dying  withoai  will?    What  is 

an  heir? 

Criminal  Law. 

70.  What  is  the  object  in  punishing  crime? 

71.  What  are  capital  crimes? 

72.  What  is  treason?    Murder?    Manslaughter?    Arson?    Burglary? 

Robbery?   Larceny?   Embezzlement?   Forgery?   Counterfeit- 
ing?   Perjury?    Bribery?    Bigamy? 

73.  What  are  accessories?    How  punished? 

74.  By  whom  may  arrests  be  made? 


DIVISION  11. 
International  Law. 


SECTION  I. 
Peaceful  Relations  op  Nations 


CHAPTER  LXII. 

NATURE   AND   AUTHORITY   OF   INTERNATIONAL  LAW. 

1.  Definition  of  Nation. — A  nation — also  called  a  state* 
— is  a  body  of  persons  living  within  a  certain  territory 
under  a  sovereign  government  organized  for  the  purpose  of 
administering  universal  justice.  Thus  a  body  of  pirates, 
though  having  an  organized  government  and  laws,  is  not  a 
nation  and  is  not  entitled  to  any  of  the  rights  of  nations,  for 
its  purpose  is  not  justice  but  plunder.  So  communities 
of  savages  do  not  come  under  international  law.  But 
there  are  very  few  countries  appearing  on  the  map  which 
are  not  now  considered  entitled  to  its  protection. 

2.  Sovereignty  is  the  chief  attribute  of  a  nation.     This 


*  In  this  connection  tliy  two  words  mean  the  same.  In  the  United 
States  the  latter  has  a  peculiar  meaning,  for  none  of  our  States  are 
nations.  Through  this  division  they  will  be  used  as  synonymous.  The 
rules  here  stated  apply  only  to  the  United  States  as  a  nation,  for  the 
States,  as  such,  ean  have  no  relations  with  foreign  nations. 


Peaceful  Relations.  257 

means  the  full  right  to  govern  its  subjects  without  inter- 
ference or  direction  from  any  other  power,  and  the  right  to 
enter  into  relations  with  other  states.  All  states,  no  mat- 
ter how  small  or  how  great  in  territory  or  power,  possess 
an  equal  degree  of  independent  sovereignty. 

3.  Dependence. — There  is  a  sense,  however,  in  which 
nations  are  dependent  upon  each  other.  Persons  in  the 
social  state,  as  we  have  seen,  are  dependent  upon  each  other 
for  assistance  (page  11).  Such  is,  in  a  measure,  the 
mutual  dependence  of  nations.  Although  the  people  of 
every  nation  may  have  within  themselves  the  means  of 
maintaining  their  individual  and  national  existence,  their 
prosperity  and  happiness  are  greatly  promoted  by  com- 
merce with  other  nations;  consequently  there  is  more  or 
;tess  intercourse  between  them  and  their  respective  citizens. 

4.  International  Law,  called  tilso  the  law  of  nations ,  it 
the  system  of  rules  regulatin;;  this  intercourse  between 
nations  and  their  respective  subjects,  as  acknowledged  by 
the  Christian  states  of  the  world.  Like  the  civil  law,  it  is 
founded  in  the  principles  of  natural  justice,  but  is  not  and 
cannot  be  so  broad  as  the  law  of  nature  (page  17).*  It  is 
made  necessary  by  the  fact  that  nations,  as  well  as  individ- 
uals, have  their  rights  which  other  nations  must  respect, 
the  right  of  property,  of  reputation,  the  right  to  protect  its 
citizens  against  injury  by  foreigners;  just  as  municipal  law 
is  necessary  to  regulate  the  rights  of  men  (page  12). 

5.  Of  Recent  Origin. — As  a  system  the  law  of  nations  is  of 
modern  growth.  It  has  existed  but  a  few  centuries.  Nations, 
even  beyond  the  middle  of  the  Christian  Era,  were  little  gov- 

*  It  must  be  remembered  that  international  law  not  only  does  not 
and  cannot  descend  to  all  the  details  of  justice  made  obligatory  by 
the  divine  law,  but  also  that  in  some  cases  it  allows  positive  injus- 
tice; for  it  consists  not  of  what  most  Christian  nations  ought  to  agree 
upon,  Ibut  what  they  ham. 


258  International  Law, 

erned  by  the  principles  of  natural  justice.  Little  respect 
was  paid  by  one  to  the  persons  and  property  of  the  citizens 
of  another.  Robbery  on  land  and  sea  was  not  only  toler- 
ated, but  esteemed  honorable;  and  prisoners  of  war  were 
either  put  to  death  or  reduced  to  slavery.  By  this  rule 
commerce  was  destroyed,  and  perpetual  enmity  kept  up  be- 
tween nations. 

6.  Cause  of  its  Growth. — The  law  of  nations  is  the  recog- 
nition of  the  fact  that  foreigners  have  claims  upon  us.  It 
has  always  been,  and  is  now  to  a  great  extent,  a  principle 
of  action  with  all  peoples  that  foreigners  are  entitled  to  no 
consideration.  The  less  that  is  known  of  them  the  less  are 
their  rights  regarded.  Christianity,  the  spirit  of  chivalry, 
and  the  increasing  intercourse  of  nations  with  each  other, 
have  been  the  agents  which  have  caused  the  world  to  recog- 
nize the  natural  rights  of  foreigners,  and  which  have  built 
up  the  law  of  nations. 

7.  Enforcement. — The  strongest  distinction  between  in- 
ternational and  civil  law  is  that  while  the  latter  has  the 
power  of  a  state  to  enforce  it,  with  the  former  there  is  no 
means  of  enforcement,  in  case  of  dispute  or  disobedience. 
This  follows  from  the  sovereignty  of  each  nation.  There 
is  no  sorereign  power  above  them  all.  It  is  and  must  re- 
main a  system  of  laws  which  the  parties  may  or  may  not 
obey,  a  J  long  as  the  world  remains  composed  of  separate 
nations.  The  only  remedy  is  for  the  nation  injured  by  its 
violation  to  appeal  to  the  sense  of  justice  of  the  other,  gen- 
erally A  futile  appeal,  or  to  resort  to  war. 

8.  Arbitration  is  a  proceeding  which  has  been  resorted 
to  at  times  in  the  settlement  of  minor  disputes;  but  there 
is  no  power  to  compel  submission  to  arbitration,  or  obe- 
dience to  the  decision  when  made. 

9.  Treaties,  as  such,  form  no  part  of  international  law. 
They  ire  binding  only  on  those  wlio  make  them,  while  the 


Peaceful  Relations,  259 

law  of  nations  is  binding  on  all  nations.  But  they  often 
contain  agreements  to  do  many  things  enjoined  by  the  law 
of  nations,  and  if  most  of  the  treaties  between  the  powers 
contain  the  same  stipulations,  they  thus  become  evidence 
of  what  the  law  is  in  those  particulars. 

10.  The  Defects  of  international  law  are  as  follows:  (1) 
There  is  no  international  legislature  to  declare  what  shall 
bo  law,  and  to  make  changes  when  necessary;  (2)  there  is 
no  judiciary  to  apply  it  in  cases  of  disputes  between  na- 
tions, and  each  nation  must  make  the  decision  for  itself; 
(3)  there  is  no  supreme  power  to  execute  the  law  (sec.  7), 
and  the  injured  nation  must  execute  it  by  war,  and  if  it  can- 
not, must  submit.  For  these  reasons  the  law  is  uncertain^ 
even  at  best,  acknowledged  by  but  a  portion  of  the  world, 
and  very  slow  to  improve.  In  case  of  dispute,  neither  dis- 
putant is  likely  to  make  a  just  judgment,  and  justice  is 
virtually  denied  to  the  weak  power  when  against  the  inter- 
est of  the  strong. 

11.  Observance. — Having  thus  the  power  in  their  own 
hands  nations  do  not  always  observe  the  law,  even  when  it 
is  clearly  established.  Even  in  the  latest  times  it  has  been 
flagrantly  violated  by  ambitious  princes  or  misguided  peo- 
ple. But  comparing  its  commencement  in  the  Middle 
Ages  with  its  present  position  we  can  say  that  it  has  made 
much  progress,  and  we  may  hope  that  in  the  future,  as 
civilization  advances  and  the  principles  of  justice  become 
better  known  and  more  widely  admitted,  its  progress  will 
be  still  greater. 


260  International  Laid. 


CHAPTER  LXIII. 

ORDITSTAKY   KULE3   OP   PEACE. 

1.  Recognition. — Every  nation  has  a  right  to  establish 
such  form  of  government  as  it  shall  see  fit,  and  when  estab- 
lished to  have  its  government  recognized  as  such  by  all 
others.  Otherwise  it  would  be  giving  one  nation  the  right 
to  interfere  in  the  affairs  of  another  (sec.  6).  International 
law  takes  governments  as  they  are,  without  questioning 
their  legitimacy,  and  thus  a  usurping  monarch  is  entitled  to 
all  its  protection.  Any  other  rule  would  make  continual 
war. 

2.  Jurisdiction. — The  exclusive  jurisdiction  of  a  state 
extends  not  only  over  the  land  within  its  boundaries,  but 
to  all  rivers  flowing  through  it,  the  bays,  harbors,  etc., 
upon  the  coast,  and  a  marine  league  of  the  contiguous 
ocean.  The  remainder  of  the  ocean  is  free  to  all.  All 
nations  may  use  it  for  transit,  fishing,  or  any  other  pur- 
pose. 

3.  Intercourse. — International  law  has  not  yet  advanced 
•So  far  that  intercourse  is  a  right  which  may  be  demanded 
in  all  cases.  In  the  absence  of  treaty  obligation,  or  the 
right  accorded  by  custom,  a  nation  may  refuse  to  allow 
others  to  have  commercial  relations  with  it,  or  may  prevent 
immigration  into  it.     It  may  shut  out  all  mankind.     This 

-we  believe  to  be  contrary  to  the  true  advantage  of  any 
state,  but  the  right  of  sovereignty  over  its  territory  implies 
such  a  power.  But  when  general  intercourse  has  been  once 
established  the  deprivation  of  the  privilege,  except  for 
some  good  reason,  would  be  an  injury  and  the  violation  of 
a  right,  for  the  right  is  gained  by  usage.  Free  intercourse 
both  for  travellers  and  immigrants  is  now  granted  by  all 


Teacqful  Relations.  261 

ciyilized  nations,  and  it  may  perhaps  be  expected  that,  as 
the  commerce  of  the  world  increases  and  trayel  becomes 
more  and  more  general,  it  will  in  time  become  established 
as  a  strict  right.  As  to  emigration,  every  citizen  now  has 
the  right  to  leave  his  country  whenever  he  chooses. " 

4.  Travellers  while  in  a  country  are  subject  to  its  laws, 
and  if  they  violate  them,  though  ignorantly,  may  be  pun- 
ished by  them.  On  the  other  hand,  they  are  entitled  to 
the  full  protection  of  its  laws  and  its  government. 

6.  Fugitive  Criminals. — A  criminal  must  usually  be 
tried  in  the  country  where  the  crime  is  committed  and 
whose  laws  are  violated.  There  is,  however,  no  strict  obli- 
gation upon  a  nation  to  return  criminals  escaping  into  it. 
This,  too,  may  in  time  come  to  be  a  principle  of  interna- 
tional law,  for  it  is  now  very  common  to  have  it  provided 
for  in  treaties,  and  our  government  has  extradition  treaties, 
as  they  are  called,  with  several  nations. 

6.  Non-interference. — It  is  a  general  principle  that  no 
nation  has  the  right  to  interfere  in  the  affairs  of  another, 
either  its  internal  affairs  or  its  relation  with  other  states. 
Interference  would  be  a  violation  of  sovereignty.  There- 
fore no  nation  has  the  right  to  aid  the  colonies,  or  any 
portion  of  another,  which  are  in  revolt  against  their 
government,  while  the  two  nations  sustain  peaceful  rela- 
tions. Such  an  act  is  unfriendly.  One  may,  however,  aid 
another  to  quell  a  rebellion,  for  that  is  a  friendly  act. 
But  when  the  revolt  has  progressed  so  far  that  a  new 
government  has  been  established,  and  the  old  government 
has  virtually  surrendered  the  contest,  though  it  may  not 
in  words  have  so  declared,  the  new  state,  because  it  is  a 
state,  may  demand  recognition  and  non-interference  from 
all  (sec.  1). 

7.  Exception. — There  is  an  important  exception  to  this 
rule  of  non-intervention.     A  state  in  Europe  may  interfere 


262  International  Law. 

when  the  political  policy  of  another,  even  though  it  be 
otherwise  just  and  peaceful,  threatens  to  endanger  the 
security  of  the  former.  Thus  if  one  state  by  uniting 
peacefully  with  another  will  grow  so  powerful  as  to  threaten 
the  independence  of  others  they  may  interfere  to  prevent 
the  union.  This  is  called  preserving  the  'balance  of  power, 
and  applies  only  to  the  nations  of  Europe,  which  have  ever 
been  jealous  of  each  other.  Extreme  cases  of  outrageous 
tyranny  or  cruelty  on  the  part  of  a  government  toward  its 
subjects  will  justify  interference. 

8.  Treaties  are  Contracts. — As  with  persons,  so  with 
nations,  all  have  the  right  of  making  contracts  with  each 
other,  and  when  made  the  parties  are  under  obligation  to 
carry  them  out.  But  treaties  cannot  be  made  which  dis- 
regard the  rights  of  others,  or  which  bind  to  do  unlawful 
acts.  So,  also,  if  obtained  through  force  or  fraud,  they  are 
void. 

9.  Ambassadors.  —  These  have  been  before  described 
(page  165).  They  form  an  exception  to  the  rule  that 
foreigners  always  become  subject  to  the  laws  of  the  country 
in  which  they  are.  Ambassadors,*  their  assistants,  fami- 
lies and  servants,  are  not  subject  to  the  laws  of  the 
comitries  in  which  they  are.  They  cannot  be  sued  in  civil 
suit  nor  prosecuted  criminally;  in  other  words,  their  per- 
sons and  property  are  inviolate.  They  are  held  answerable 
only  to  the  laws  of  their  own  country  when  they  shall 
return  home.  The  reasons  for  this  rule  are,  (1)  the  respect 
due  them  as  the  representatives  of  a  nation,  and  (2)  the 
necessity  that  they  should  be  free  from  all  interruption  and 
danger  in  the  discharge  of  their  important  duties.  They 
are  also  entitled  to  the  same  privileges  in  the  countries 
through  which  they  pass  in  going  to  or  returning  from  the 

*  We  here  mean  foreign  ministers  of  all  kinds. 


Peaceful  delations,  263 

country  to  wliich  they  are  sent.     Any  disrespect  shown  to 
them  is  disrespect  to  the  nation  they  represent. 

10.  Consuls  are  not  entitled  to  the  privilege  enjoyed  by 
ministers,  but  are  subject  to  the  laws  of  the  country  in 
which  they  reside.  As  in  the  case  of  ministers,  consuls 
carry  a  certificate  of  their  appointment,  and  must  be 
acknowledged  as  such  by  the  government  of  the  country 
in  which  they  reside,  before  they  can  perform  any  duties 
pertaining  to  their  office. 

11.  Eeprisals  have  been  before  explained  (page  147). 
They  are  sometimes  used  as  a  means  of  obtaining  satisfac- 
tion without  actual  war.  The  property  when  taken  is  kept 
until  all  hope  of  satisfaction  is  gone,  and  then  it  is  confis- 
cated.* But  now  reprisals  are  seldom  resorted  to  in  time 
of  peace. 

12.  Embargo  is  the  detention  for  a  time  of  all  vessels 
in  the  ports  of  a  country  by  its  government.  When  directed 
against  all  vessels,  national  and  foreign,  for  the  purpose  of 
protecting  them,  it  is  a  civil  embargo.  "When  directed 
against  foreign  vessels  in  time  of  peace  it  is  called  a  Jiostile 
emhargo,  and  is  a  species  of  reprisal.  Embargo  is  lawful, 
but  is  falling  into  disuse,  except  as  a  measure  of  war. 

*  To  confiscate  is  to  adjudge  property  to  be  forfeited,  and  to 
appropriate  it  to  the  use  and  benefit  of  the  state. 


264  International  Law, 


SECTION  11. 
Relations  of  Nations  in  War. 


CHAPTER   LXIV. 

CAUSES   AND   OBJECTS   OF  WAR. 

1  Rightfulness  of  War. — A  nation  itself  has  rights,  the 
right  of  sovereignty,  independence,  property,  etc.,  and  is 
under  obligation  to  protect  them,  and  also  to  protect  the 
rights  of  its  citizens.  The  purpose  of  government  is  to 
protect  these  rights  against  all  the  world.  But  we  have 
seen  that  when  these  rights  are  violated  or  threatened  by  a 
foreign  nation  or  its  subjects  there  is  no  supreme  power  to 
whom  to  look  for  redress  or  protection.  Therefore  each 
nation  has  in  itself  the  two  rights  of  redress  and  self- 
defence;  that  is,  it  may  use  force  to  redress  or  to  prevent 
the  infliction  of  an  injury  upon  itself  or  its  subjects.  War, 
therefore,  though  a  great  evil,  is  just  when  used  as  a  means 
to  prevent  a  greater  evil;  and  war  in  itself  is  not  wholly  an 
evil,  for  it  has  often  been  the  means  of  bringing  back  the 
decaying  virtue  of  a- people. 

2  Cause, — But  war  is  not  lawful  unless  it  has  (1)  a  jnst 
cause,  and  (2)  a  proper  and  sufficient  object;  that  is,  there 
must  be  some  cause  recognized  as  just  by  most  nations,  and 
the  object  to  be  attained  by  it  must  be  sufficient  to  com- 
pensate the  world  for  the  injury  it  inflicts.  A  just  cause 
is  the  violation  of  any  of  the  rights  of  a  nation  or  its  sub- 
\ects.     Thus,  interference  by  another  with  its  sovereignty, 


Relations  in  War,  265 

or  independence,  seizure  of  its  territory,  unjust  injury  to 
the  liberty,  security,  or  property  of  its  citizens,  insults  to 
its  flag  or  its  ambassadors,  and  violations  of  treaties,  are 
just  causes  of  war  by  the  nation  injured  against  the  one 
injuring. 

3,  Object. — A  proper  object  of  a  just  war  may  be,  (1) 
to  obtain  redress  for  wrong  committed,  (2)  as  a  punish- 
ment to  prevent  its  repetition,  and  (3)  in  self-defence  to 
prevent  its  present  commission.  Self-defence  against  un- 
just attack  is  always  a  sufficient  object  of  war.  But  in 
many  cases  the  injury  committed  or  threatened  is  so  small 
as  not  to  justify  a  war;  that  is,  the  object  is  proper  but 
not  sufficient.  Injuries  to  single  individuals  are  often  of 
this  nature.  And  yet  sometimes  a  small  injustice  to  a 
single  person  may  be  done  in  such  a  manner  as  to  imply 
contempt  for  his  nation :  in  such  case  the  interests  of  the 
whole  nation  compel  it  to  resent  the  wrong. 

4.  Who  Judges. — And  yet,  as  we  have  seen,  the  nation 
intending  to  resort  to  war  is  the  only  one  authorized  to  de- 
cide whether  its  cause  be  just  and  its  object  proper  and 
sufficient.  Others  have  no  right  to  interfere,  even  though 
they  should  think  the  war  unjust.  But  if  no  pretext  of 
right  be  offered,  any  or  all  nations  may  interfere,  for  there 
is  no  such  thing  as  the  right  of  conquest. 

6.  Arbitration. — It  may  be  said  that  in  justice  all  peace- 
ful measures  to  obtain  redress  ought  to  be  taken  before 
war  is  resorted  to;  such  as,  demand  of  satisfaction,  and 
offer  to  arbitrate.  This  is  one  of  the  cases  in  which  inter- 
national law  has  not  yet  reached  its  highest  point,  for  such 
preliminaries,  though  frequently  taken,  are  not  necessary 
to  a  just  war.  Indeed  in  some  cases,  as  of  an  attack  with- 
out warning,  they  are  not  possible. 

6.  Alliance  for  War. — By  treaty  of  alliance,  nations 
sometimes  agree  to  assist  each  other  in  case  of  war  with  a 


266  International  Law. 

third  power.  But  when  the  occasion  arises  each  of  the 
allies  must  decide  for  itself  whether  it  will  take  part,  for 
no  treaty  can  bind  one  to  wage  an  unjust  war. 


CHAPTER  LXV. 

EIGHTS  AlTD    DUTIES    OF  BELLIGERENTS.* 

1.  Declaration. — When  a  nation  has  resolved  on  making 
war,  ii  IS  usual  to  announce  the  fact  by  a  public  declara- 
tion. It  was  usual,  formerly,  to  communicate  a  declaration 
of  war  to  the  enemy,  but  this  is  not  now  necessary.  Any 
manifesto  or  paper  from  an  official  source,  published  in 
such  a  way  as  to  give  notice  to  its  citizens,  the  enemy,  and 
neutrals,  is  sufficient.  Every  one  should  be  notified  whose 
rights  may  be  affected,  so  that  he  may  protect  them.  The 
recalling  of  a  minister  has  alone  been  regarded  as  a  hostile 
act,  and  followed  by  war,  without  any  other  declaration, 
but  such  cases  have  not  been  frequent. 

2.  Effect  upon  Intercourse. — The  government  of  a 
state  acts  for  and  in  behalf  of  all  its  citizens;  and  its  acts 
are  binding  upon  all.  Hence,  when  war  is  declared,  all  in- 
tercourse between  the  two  countries  at  once  ceases.  All 
trade  between  the  citizens,  directly  or  indirectly,  is  strictly 
forbidden;  and  all  contracts  with  the  enemy  made  during 
the  war  are  void. 

3.  Foreigners  within  the  Country  belonging  to  the 
hostile  nation  are,  upon  the  declaration  of  war,  either  al- 


*  Belligerents  are  those  taking  active  part  in  a  war ;  neutrals  arq 
all  others, 


Relations  in  War.  267 

lowed  to  remain  during  good  behavior,  even  through  the 
war,  or  else  a  reasonable  time  is  given  them  by  public  pro- 
clamation to  depart  with  their  property. 

4.  Private  Acts.  —Formerly  war  made  every  citizen  of 
one  state  the  enemy  of  every  citizen  of  the  other,  but  now 
the  accepted  theory  is  that  it  is  simply  a  contest  between 
the  governments.  Private  persons  have  no  right  to  engage 
in  hostilities  without  authority  from  their  government.  If 
they  do  they  are  liable,  if  captured  by  the  enemy,  to  be 
treated  as  murderers,  robbers,  and  pirates,  rather  than  as 
prisoners  of  war. 

5.  Combatants  are  the  members  of  the  army  and  navy 
actually  engaged  in  prosecuting  the  war.  They  may  be 
killed  by  the  enemy.  The  right  to  use  force  implies  the 
right  to  take  the  life  of  those  who  make  resistance.  There 
is  little  limit  to  the  kinds  of  weapons  that  may  be  used  for 
this  purpose,  though  the  use  of  poison  is  prohibited.  So 
also  stratagems  and  deceit  are  allowable,  but  not  so  far  as 
to  constitute  a  breach  of  faith.  When  an  enemy  sur- 
renders or  is  captured  the  right  to  kill  is  gone. 

6.  Prisoners  of  War  are  members  of  the  opposing  army 
or  navy  captured  in  war.  They  may  be  confined,  and  even 
fettered,  if  there  is  reason  to  apprehend  that  they  will  rise 
against  their  captors  or  make  their  escape,  but  must  be 
treated  with  humanity.  Prisoners  of  war  are  detained  to 
prevent  their  returning  to  join  the  enemy,  or  to  obtain 
from  their  government  a  just  satisfaction  as  the  price  of 
their  liberty,  and  may  be  kept  till  the  end  of  the  war. 
Deserters  and  spies,  when  captured,  may  be  shot. 

7.  Non-Combatants  are  citizens  of  the  belligerent  nations 
who  take  no  part  directly  in  carrying  on  the  war.  Not 
only  are  they  not  subject  to  capture  or  any  personal  moles- 
tation, but  their  property  on  land  is  exempt  from  capture, 
as  long  as  they  take  no  active  part  in  the  war.     Marauding 


268  International  Law. 

and  ravaging  by  an  invading  army  is  therefore  unlawful.  * 
This  follows  from  the  fact  that  the  war  is  between  the  gov- 
ernments and  not  the  subjects.  But  sometimes,  when 
necessary  for  the  support  of  an  army,  the  inhabitants  of  an 
invaded  country  may  be  compelled  to  give  up  the  property 
wanted  at  a  fair  value,  or  even  in  rare  cases  without  com- 
pensation. 

8.  Siege. — In  the  treatment  of  a  fortified  town  which 
has  resisted  and  has  been  taken  by  the  enemy,  the  law  is  far 
below  humanity.  It  is  allowable  to  give  the  soldiers  free 
license  to  plunder.  The  town  may  also  be  bombarded,  and 
thus  the  property  and  lives  of  non-combatants  destroyed. 
It  is  to  be  hoped  that  future  wars  will  mark  an  improve- 
ment in  this  particular. 

9.  Civil  War. — The  foregoing  rules  of  war  apply  not 
only  to  war  between  separate  nations,  but  also  to  civil 
war  between  portions  of  the  same  nation,  and  to  war  with 
savages.  In  the  last  case  it  is  not  justice  to  treat  the  sav- 
age with  inhumanity  because  he  so  treats  us. 

10.  At  Sea  the  property  rights  of  non-combatants  are 
essentially  different  from  those  upon  land.  The  object  of 
maritime  war  is  to  destroy  the  commerce  and  navigation  of 
the  enemy,  with  a  view  of  weakening  his  naval  poAver.  To 
this  end,  the  capture  or  destruction  of  private  property  be- 
longing to  subjects  of  the  hostile  nation  is  necessary,  and  is 
justified  by  the  law  of  nations.  It  may  be  that  in  time  this 
rule  will  be  modified,  as  there  seems  to  be  little  justice  in  it. 

11.  Privateers. — Besides  national  ships  of  war,  there  are 
armed  vessels  owned  by  private  citizens,  and  called  priva- 

*  Even  the  public  property  of  a  nation  may  not  be  captured  or 
destroyed  by  the  enemy,  unless  used  for  war  purposes;  but  forts 
and  other  military  buildings  and  stores  may  be. 

International  law  does  not  allow  the  interest  of  a  hostile  nation 
or  its  subjects  ifl  tlxe  public  funds  of  its  enemy  to  be  confiscated. 


Relations  in  War.  260 

teers.  Their  owners  receive  from  the  government  a  com- 
mission to  go  on  the  seas,  and  to  capture  any  vessel  of  the 
enemy  and  its  cargo,  whether  it  is  owned  by  the  government 
or  by  private  citizens,  and  whether  it  is  armed  or  not.  And 
to  encourage  privateering  the  government  allows  the  owner 
and  crew  of  a  privateer  to  keep  the  property  captured  as 
their  own  (page  148).  But  privateering  is  little  more  than 
legalized  piracy.     Many  nations  have  agreed  to  give  it  up. 

12.  Prize  is  property  captured  from  an  enemy  at  sea. 
In  reality  it  belongs  to  the  government,  but  is  distributed 
as  a  reward  among  the  captors.  Whether  captured  by  a 
national  vessel  or  a  privateer  it  must  first  be  brought  into 
a  port,  where  a  court  examines  into  the  facts,  and  dis- 
tributes it  to  those  entitled. 

13.  Truce. — This  is  an  agreement  to  suspend  hostilities 
temporarily.  It  may  be  for  a  few  days,  or  for  years,  and 
for  any  purpose.  A  truce  binds  the  contracting  parties 
from  the  time  it  is  made;  but  individuals  of  the  nation  are 
not  responsible  for  its  violation  before  they  have  had  due 
notice  of  it.  For  all  prizes  taken  after  the  time  of  its  com- 
mencement the  government  is  bound  to  make  restitution. 
During  the  cessation  of  hostilities  each  party  may,  within 
his  own  territories,  continue  his  preparations  for  war  with- 
out being  charged  with  a  breach  of  good  faith. 

14.  Treaty  of  Peace. — War  is  generally  terminated,  and 
peace  secured,  by  treaties  of  peace.  They  leave  the  con- 
tracting parties  no  right  to  take  up  arms  for  the  same  cause. 
The  parties  to  a  treaty  of  peace  are  bound  by  it  from  the 
time  it  is  made,  and  a  government  is  bound  to  order  and 
enforce  the  restitution  of  property  captured  subsequently 
to  the  conclusion  of  the  treaty.  But,  as  in  the  case  of  a 
truce,  persons  are  not  held  responsible  for  any  hostile  acts 
committed  before  the  treaty  was  known. 


270  International  Law, 

CHAPTER  LXVI. 

RIGHTS  AND    DUTIES  OF  NEUTRALS. 

1.  Neutral  Territory. — A  neutral  nation  may  insist  that 
neither  belligerent  shall  carry  on  operations  against  the 
enemy  upon  its  territory.  It  may  even  forbid  the  trans- 
portation of  troops  across  it.  No  captures  can  be  made 
within  its  jurisdiction  on  land  or  sea. 

2.  Neutrality. — A  neutral  nation  is  bound  to  observe  a 
strict  impartiality  toward  the  parties  at  war.  If  it  aids 
one  party  it  may  be  treated  as  an  enemy  by  the  other.  A 
loan  of  money  to  one  of  the  belligerents,  allowing  the  en- 
listment of  troops  or  equipment  of  war- vessels  within  the 
neutral  territory,  or  supplying  it  with  other  means  of  carry- 
ing on  a  war,  if  done  with  the  view  of  aiding  it  in  the  war, 
would  be  a  violation  of  neutrality. 

3.  Aid  by  Subjects. — But  a  neutral  nation  is  not  re- 
quired to  keep  its  subjects  within  such  strict  lines  of  neu- 
trality as  it  is  itself  bound  by.  Private  persons  belonging 
to  the  neutral  nation  may  lend  money  to  either  belligerent 
by  buying  its  bonds,  or  may  enlist  in  its  armies,  without 
involving  their  own  nation.  Such  things  are  difficult  to 
prevent.  But  it  is  a  violation  of  neutrality  for  a  neutral 
nation  to  allow  its  subjects  to  equip  private  vessels  for  pri- 
vateers and  accept  letters  of  marque  in  the  interest  of  one 
of  the  belligerents. 

4.  Trade. — In  general,  the  rule  is  that  a  neutral  nation 
may  continue  its  customary  trade  with  either  belligerent 
during  the  war,  although  such  trade  may  furnish  it  the 
means  of  carrying  on  the  war.*    Hence  goods  belonging 

*  This  is  the  rule.  The  cases  of  contraband  goods  (sec.  5)  and 
blockade  (sec.  7)  are  exceptions  to  it. 


Relations  in  War,  271 

to  neutrals  cannot  be  captured  by  either  belligerent,  even 
though  they  are  in  vessels  belonging  to  subjects  of  one  ol 
the  belligerent  powers,  though  in  such  case  the  vessel  may 
be  captured;  and  the  goods  belonging  to  the  subjects  of  one 
belligerent  nation  may  not  be  captured  by  the  other  when 
found  in  neutral  vessels.  In  other  words,  the  only  prop- 
erty which  may  be  captured  by  a  belligerent  is  property 
belonging  to  the  other  belligerent  or  its  subjects,  when 
found  at  sea  in  vessels  belonging  to  the  latter  nation  or  its 
subjects,  and  outside  the  jurisdiction  of  any  neutral  state. 

5.  Contraband  of  "War. — But  there  are  certain  articles 
(called  contraband  of  war)  which  neutrals  have  no  right  to 
supply  to  either  belligerent,  because  they  are  directly  use- 
ful in  the  prosecution  of  the  war.  What  these  articles  are, 
it  is  impossible  to  say  with  precision,  as  some  may  in  cer- 
tain cases  be  lawfully  carried,  which  would  be  justly  pro- 
hibited under  other  circumstances.  The  matter  is  very 
often  regulated  by  treaty.  Among  the  articles  usually  con- 
traband are  arms,  cannon,  ammunition,  ships,  horses,  and 
sometimes  materials  for  ship-building,  naval  stores,  or 
even  provisions.  Contraband  goods  intended  for  one  bel- 
ligerent may  be  seized  and  confiscated  by  the  other,  no 
matter  to  whom  they  belong,  when  captured  outside  of 
neutral  territory. 

6.  Right  of  Search. — To  prevent  the  conveyance  of  con- 
traband goods  the  law  of  nations  gives  a  belligerent  nation 
the  right  of  search  ;  that  is,  the  right,  in  time  of  war,  to 
search  neutral  vessels  to  ascertain  their  character  and  what 
articles  are  on  board.  A  neutral  vessel  refusing  to  be 
searched  by  a  lawful  cruiser  would  thereby  render  herself 
liable  to  condemnation  as  a  prize.  Private  merchant  vessels 
only  are  subject  to  search;  the  right  does  not  extend  to 
neutral  public  ships  of  war.  ' 

7.  Blockade. — One  of  the  rights  of  a  belligerent  nation 


272  International  Law, 

which  a  neutral  is  bound  to  regard  is  the  right  of  blockade. 
A  war  blockade  is  the  closing  of  an  enemy's  j^orts,  to  pre- 
vent all  vessels  from  coming  out  or  going  in.  The  object  of 
a  blockade  is  to  hinder  supplies  of  arms,  ammunition,  and 
provisions  from  entering,  with  a  view  to  compel  a  surren- 
der by  hunger  and  want,  without  an  attack.  A  neutral  ves- 
sel attempting  to  enter  or  depart  may  be  seized  and  confis- 
cated. Towns  and  fortresses  also  may  be  shut  up  by  post- 
ing troops  at  the  avenues. 

8.  Paper  Blockade. — A  simple  decree  or  order  declaring 
a  certain  coast  or  country  in  a  state  of  blockade  does  not 
constitute  a  blockade.  A  force  must  be  stationed  there 
competent  to  maintain  the  blockade,  and  to  make  it  dan- 
gerous to  enter.  Without  such  a  force  it  is  called  a  paper 
llockade.  And  it  is  necessary  that  the  neutral  should  have 
due  notice  of  the  blockade,  to  subject  his  property  to  con- 
demnation and  forfeiture.  According  to  modern  usage, 
if  a  place  is  blockaded  by  sea  only  trade  with  it  by  a 
neutral  nation  maybe  carried  on  by  inland  communication. 
And  a  neutral  vessel,  loaded  before  the  blockade  was  estab- 
lished,  has  a  right  to  leave  the  port  with  her  cargo. 


Review  Questions.  273 


EEYIEW  QUESTlOirS. 


Internation^al  Law. 


Peaceful  Belationa  of  I^ations. 

1.  What  is  a  nation?    Is  New  York  State  a  nation?    Why? 

2.  What  is  sovereignty? 

3.  Define  international  law.     How  old  is  it? 

4.  Name  the  chief  causes  of  its  growth. 

5.  How  is  it  enforced?    Why? 

6.  Are  treaties  a  part  of  international  law? 

7.  Name  its  defects,  and  why  they  are  such. 

8.  What  is  the  right  of  recognition?    Do  usurpers  have  it? 

9.  State  the  jurisdiction  of  a  nation. 

10.  How  far  is  commercial  intercourse  between  nations  a  right? 

May  a  state  prevent  immigration?    May  it  prevent  emigra- 
tion? 

11.  To  what  laws  are  foreigners   travelling  in  a  country  subject? 

State  the  exception  to  that  rule,  and  its  two  reasons. 

12.  What  is  extradition?     Is  it  demandable  as  a  right? 

13.  State  the  rule  of  non-intervention.    What  is  the  balance  of 

power? 

14.  May  provinces  in  revolt  be  aided  by  a  foreign  nation?    Why? 

May  a  nation  be  aided  in  a  war  with  its  provinces? 

15.  What  are  reprisals?    Embargo?    Their  object? 

Eelationa  of  Nations  in  War, 

16.  What  are  belligerents?    Neutrals? 

17.  Why  is  war  right?    What  two  general  rights  does  it  rest  upon? 

18.  What  three  things  are  necessary  to  a  just  war? 

19.  Name  some  just  causes  of  war.* 


274  Review  Questicms, 


20.  Name  the  proper  objects  of  war. 

21.  May  a  neutral  nation  prevent  a  war  because  it  is  unjust? 

22.  Is  there  any  obligation  to  arbitrate? 

23.  To  whom  should  notice  of  a  state  of  war  be  given?    "Why? 

24.  What  is  the  effect  of  war  upon  trade  between  the  belligerents? 

Between  a  belligerent  and  neutral?    Between  neutrals? 
26.  What  is  the  effect  of  war  upon  foreigners  within  the  hostile 
nation? 

26.  May  private  individuals  take  part  in  the  war? 

27.  Who  may  be  put  to  death  in  war?    What  means  may  be  used? 

What  deceit? 

28.  May  prisoners  of  war  be  put  to  death?    Deserters?     Spies? 

29.  What  are  non-combatants?    May  they  be  made  prisoners?    Is 

their  property  subject  to  capture,  on  laud?  At  sea? 

30.  What  are  privateers?    Prize? 

31.  What  is  a  truce?    A  treaty  of  peace?    From  what  time  do  they 

bind  individuals? 
82.  What  rights  have  nations  at  war  over  neutral  territory? 

33.  State  the  rule  of  neutrality. 

34.  What  aid  may  neutral  subjects  render? 

35.  State  the  rule  as  to  neutral  trade.     Its  two  exceptions. 

36.  What  property  may  be  captured  in  war? 

37.  Define  contraband  of  war.     AVhat  articles  are  contraband? 

38.  What  is  the  right  of  search? 

39.  What  is  the  right  of  blockade?    The  penalty?    What  is  a  paper 

blockade' 


INDEX. 


PAGE 

A-ccessory 252 

A.cknowledgment  (of  deed,  etc.).  •  238  j 
Action  (at  law).    See  Suit. 

A-dministrator 78,  248 

Admiralty 175 

Aeent.     See  Principal  and  Agent. 

Alderman 57 

Aldermen,  Board  of t 58 

Alien 27,  141 

Alliance 155,  265 

Ambassador, 

appointment 164 

exemptions 262 

reception 167 

A-mendment  (of  Constitution), 

national 181,  183-191 

state 25 

Answer  (in  suit  at  law) 81 

Appeal  (in  suit  at  law) 83 

Appointment.    See  Governor,  Pre- 
sident. \ 

Apprentice 200 

Appropriation 154 

Appurtenance 239-242 

Arbitration  (between  nations).258,  265 

Aristocracy 20 

Arms,  right  to  keep 185 

Army 72,  148 

Arraignment 86 

Arrest 84 

by  whom  made 253 

Arson 251 

Assault  and  battery 80,  252 

Assessment  (of  taxes) 61 

Assessments 64 

Assessors 55 

Assent  (in  contract) 204 

Assignment  (by  debtor) 221 

Asylum 69 

Attainder 153,  156 

Attempt  (at  crime) 252 

Attorney 81 

Attorney-General, 

national 170 

state 48 

Auditor.    See  Comptroller. 

Bail 


84 
187 


PAGE 

Balance  of  Power 261 

Bankruptcy 142 

Belligerent 266 

Bigamy 209,  252 

Bill  (legislative) 42 

Bill  of  Attainder.    See  Attainder. 

Bill  of  Credit 156 

Bill  of  Exchange. 222-226 

Bill  of  Lading 233 

Bill  of  Rights 183 

Blockade 272 

Body  Politic 24 

Bribery 252 

Broker 214 

Burglary 251 

Cabinet 168 

Canal  69 

Capital 38 

Capital  Punishment 250 

Captures 148,  269 

Census, 

national 125 

state 36 

Challenge  (at  election) 29 

Charter 57 

Chattel 220 

Chattel  Mortgage 220 

Check 223 

Child.    See  Parent  and  Child. 
Citizen, 

defined 140 

privileges  in  different  States. .  178 

City 57-60 

Civil  Law 16 

Civil  Service 166 

Civil  War,  Rules  of 268 

Clearance  (of  vessels) 139, 154 

Codicil 247 

Coinage, 

by  Nation 143 

by  State 156 

Colonies,  Government  in 91 

Colony,  defined '90 

Combatant  (in  war) 267 

Commerce,  regulation  of 186 

Commission  Merchant 213 

Committee,  Legislative 41 

Common  Carrier 229 


276 


Inde^. 


PAGK 

Common  Comicil 58 

Common  Law 196 

Complaint  (in  suit  at  law) 81 

Comptroller 48 

Confederacy 97 

Confederation,  The 93-97 

Confiscation 263 

Congress,  Continental 93 

Congress  (of  U.  S.), 

adjournment 104, 110 

composition 124 

journal  103 

meetings 132,  167 

officers 131 

quorum 103 

rules 131 

Congress,  Members  of, 

compensation 132 

civil  officer 14 

election  103 

privileges 133 

Congress,  Powers  of..  119-121, 13;i- 

151, 177-181,  188 

Consideration  (of  contract) 204 

Constable 55 

Constitution,  English 26 

Constitution,  State 23-25 

Constitution,  U.  S., 

adoption 96 

text  of 100-124 

Consul 165,  263 

Contraband  of  war 5^71 

Contract 202-208 

Contract,  law  impairing  obligation 

of 156 

Convention,  Constitutional 97 

Conventionof  1786 96 

Copyright 144 

Coroner 52 

Corporation, 

control  by  State 70 

municipal 50,  59 

Corruption  of  blood 177 

Council,  Executive 47 

Counterfeiting 105,  251 

County, 

importance 50 

officers 51-53 

origin 50 

County  Commissioners 51-53 

Courts. 

national. 145, 171-173 

jurisdiction 173-176 

state 75-79 

Covenant  (in  deed) 239 

Creditors,  rights  of  220 

Crimes, 

defined 249 

punishable  by  Congress. .  .145,  177 
punishable  by  the  State. .  .249,  253 

Crop,  right  of  tenant  to 244 

Customs 134,  136 

Days  of  Grace >. 226 

Death,  distribution  of  property 
upon 247 


PAOS 

Debt, 

of  Nation 190 

of  State 71 

Declaration  (in  suit  at  law) 81 

Declaration  of  Independence 93 

Deed 237 

Defendant 81 

Delivery  (of  property)  217, 220 

Democracy 21 

Departments  of  Government 31-33 

Departments  (national) 168- 170 

Deposit  Fund  (of  U.  S.) 66 

Deserter,  punishment  of 267 

Despotism 20 

Diplomacy 169 

District  Attorney 63 

District  of  Columbia 146 

Divorce 210 

Dower 210,  235 

Drunkards,  contracts  by 204 

Duties, 

collection  of 139 

defined 134 

laid  by  Nation 135, 137, 153 

laid  by  State 154, 157 

Education 65-69 

Election 28-31 

Electors,  qualifications  of 26-28 

Electors,  Presidential 161, 162 

Embargo 263 

Embezzlement 251 

Emigration,  right  of 261 

Eminent  Domain 70 

Entry  (of  vessels) 139, 154 

Envoy 165 

Estates 235-237 

Eviction  (from  land) 243 

Excise 64, 135 

Execution  (in  suit  at  law) 83 

Executor 78 

Ex  post  facto  law 153, 156 

Fee-simple 235 

Force  (in  contract) 206 

Foreclosure 2?^9 

Forgery 227,  251 

Franchise 27 

Fraud  (in  contract) 206 

Fraudulent  transfer 220 

Freedom  of  Speech 16, 185 

Freedom  of  the  Press 16, 185 

Freeholder 125 

Free  Trade 138 

Fugitive  Criminals 179,  261 

General  Average 233 

Gift 220 

promise  of 205 

Government, 

necessity  for 13 

forms  of 1 9-22 

Governor 45,  46 

Guardian  and  Ward 15,  g(X) 


Index. 


277 


PAGE 

Habeas  Corpus, 

described 85 

suspension  of 153 

Heir ^7 

Highway, 

regulation  of 55 

rights  of  adjoining  owners 240 

Homicide 250 

Hotel-keeper 228 

Husband  and  Wife.    See  Marriage. 

Idiot,  contract  by 204 

Immigration,  right  to  prevent 260 

Impeachment 76,  79,  131 

Impost, 

laid  by  Nation 134, 135 

laid  by  State 64 

Indians,  commerce  with 140 

Indictment 84 

Indorsement 223,  226 

Infant 203 

Inspectors  of  Election 29 

Insurance 230-232 

Insuri-ection 73, 180 

Interest 234 

Intestacy ^47 

Joint  Owner 235 

Judge, 

of  national  court 165 

of  state  court 79 

Judgment 83 

Jurisdiction,  kinds  of 76 

Jury, 

grand  jury 84 

trial  by 81 

protected 186,  187 

Justiceof  the  Peace 77 

Landlord  and  Tenant 242-245 

Larceny 251 

Laws, 

defined 12 

classified 16, 17, 196 

making  of 

in  Nation 132,133 

instate 40-44 

Lease 236,  ^42-245 

Legal  Tender      156 

Legislature,  of  Nation.    See  Congress. 
Legislature,  of  State, 

how  constituted 34-37 

meetings  and  organization.  ..37-40 

Letters  of  Marque 147, 155 

Libel 198 

Liberty 15 

Lien,  kinds  of 213, 818,  219,  232 

Lieutenant-Governor 38,  47 

Lunatic,  contract  by 204 

Majority  (in  election) 31 

Manslaughter 250 

Marque.    See  Letters  of  Marque. 


PAGE 

Marriage 208-211 

Master  and  Servant 15,  201 

Master  (of  vessel),  authority  of. . .  233 

Mayor 57 

Measures,  standard  of ... . 143 

Message, 

of  Governor 40 

of  President 167 

Militia 73-74,149 

Minister.    See  Ambassador. 
Minor.    See  Infant. 

Monarchy 19 

Money,  what  is 143 

See  Coinage. 

Mortgage 220,  237 

Murder 250 

Nation,  character  of 90,  97,  256 

National  Guard 74 

Natm-alization 141 

Navigation,  regulation  of 137, 139 

Navy 148 

Negotiable  Paper 219,  225 

Negro,  rights  of 28, 189, 190 

Neutrals, 

who  are 266 

rights  and  duties  of 270-272 

New  States 179 

Non-combatants  (in  war), 

on  land 267 

at  sea 268 

Note,  promissory 221-228 

Notice  to  Quit 245 

Oath  of  office 182 

Ordinance  (of  city) 58 

Overseers  of  the  Poor. 65 

Paper  Blockade 272 

Pardon 46, 164 

Parent  and  Child 15, 199,  200 

Partnership 214-217 

Party  Wall 241 

Patent 144, 169 

Patriarchal  Government 19 

Pauper 28,55 

Pension 169 

Perjury 252 

Personal  Property 61 

Petition  (legislative) 41 

Petition,  right  of 185 

Piracy 145 

Plaintiff  (in  suit  at  law) 80 

Plea  (in  suit  at  law) 81 

Pleading  (in  suit  at  law) 81 

Plurality  (in  election) 80 

Policy  (of  insurance) 231 

Poll 29,60 

Polygamy.    See  Bigamy. 
Poor.    See  Pauper. 

Postmaster-General 170 

Post-office 143 

Preamble  (of  U.  S.  Constitution)..  124 
Premium  (in  insurance) 230 


278 


Index, 


PAGE 

President  (of  U.  S.), 

election 161, 188 

powers  and  duties 163-168 

qualifications 163 

salary 164 

term  of  office  130 

Principal  and  Agent 211-214 

Prison 71 

Prisoner  of  War 267 

Privateer 148,  268 

Prize 269 

Probate  (of  will) 77 

Prohibitions, 

on  the  States 155-159 

on  the  United  States 152-155 

Property,  basis  of  right  of 12 

Prosecuting  Attorney 53 

Protection 138 

Quarantine 140 

Quorum, 

in  National  Legislature 103 

in  State  Legislature 39 

)Elailroad 70 

Real  Estate,  defined  61,  235 

Rebellion, 

defined 73 

aid  by  foreign  nation 261 

Record  (of  deed,  etc.) 238 

Records,  of  one  State  in  another..  178 

Recorder.. 52 

Register 52 

Registration  (of  voters) 30 

Registry  (of  vessels) 139 

Release,  from  debts 221 

Religion,  freedom  of 184 

Rent 243 

Repairs  (to  rentedproperty) 244 

Representatives,  House  of, 

national 124-128,  189 

state 35,36 

Reprieve 46, 164 

Reprisal 148,263 

Republic 21,  23 

Revenue  Bills 133 

Revolution,  Causea  of  the 91-93 

Rights, 

defined 13 

how  forfeited 14 

classified 14-18 

Road.    See  Highway. 

Robbery 251 

Sale  217-220 

Salvage 233 

Schools,  Common 65-69 

Schools,  Normal 68 

School  Funds. .   66 

Search,  right  of  (in  war) 271 

Search-warrant 186 

Seat  of  (Government 38, 146 


PAGE 

Secretary 

of  State 48,168 

of  the  Treasury 169 

of  the  Interior 169 

of  War 169 

of  the  Navy 169 

Seizure 186 

Selectmen  (of  town) 54 

national 124, 128-131 

state 34-37 

Sergeant-at-arms 39 

Servant.    See  Master  and  Servant. 

Services 205,228-230 

Sheriff 52 

Shipping,  law  of 232-234 

Siege 268 

Slander 197 

Slaves, 

apportionment  of  Representa- 
tives  126,127 

fugitive 179 

Slavery,  abolition  of 189 

Slave-Trade 152 

Soldiers,  in  private  houses 185 

Sovereignty 256 

Speaker 38,  131 

Spy,  punishment  of 267 

State, 

admission  of 179 

suit  against 188 

not  a  nation 256 

Statement  (by  civil  officers) 154 

State's  Attorney 53 

Statute 196 

Stock,  State 71 

Stratagem  (in  war) 267 

Stream,  lights  of  adjoining  owner  240 

Sub-lease 245 

Subpoena 82 

Suit,  proceedings  in, 

civil 80-84 

criminal 84-87 

Suffrage 26 

Summons  (in  suit  at  law) 80 

Supervisors 54 

Supervisors,  Board  of 51 

Tariff 135 

Tax 

by  Nation 134-136, 153 

by  State 60-65, 157 

Tenant.     See  Landlord  and  Tenant. 
Tender.    See  Legal  Tender. 
Territories, 

how  governed 21, 180 

represented  in  Congress 128 

Test  Oath 182 

Theocracy 19 

Title  of  Nobility 154,  157 

Tonnage 158 

Town  Officers 54r-56 

Town  Meeting 56 

Jownship 54 


Index, 


279 


PAGE 

Treason, 

against  Nation 176, 177 

against  State 250 

Treasurer, 

state 4& 

county 51 

town 65 

Treaty, 

defined 164 

by  whom  made 164 

State  forbidden  to  make 155 

as  part  of  International  law. 258,262 

Treaty  of  Peace 269 

Trial 82,85 

See  al»o  Jury. 

Truce 269 

Trust 236 

Usury 234 

Vacancy, 

in  State  Legislature 87 

in  Congress 102 

Verdict 82 

Vessels.     See   Entry,   Clearance, 
Registry,  Shipping. 


PAoa 

Veto, 

by  Governor 43,44 

by  President 138 

Voters.    See  Electors. 

Village .e&-60 

War, 

Eower  of  Congress  over. . .  .147-150 
yStates 158 

by  private  persons 267 

rightfulness  of 264 

just  causes  of 264 

objects  of 265 

effect  upon  belligerents 266 

effect  upon  neutrals 270 

Ward.    See  Guardian  and  Ward. 

Warranty, 

of  title 219,239 

or  quality 219 

Way,  Right  of 241 

Weights,  standard  of 148 

Wife, 

power  to  contract 204 

property  rights 209 

right  of  support 210 

See  Marriage. 

Will 78,24P-»''tt 


^y- 


'/ 


A  Text-Book  on  Rhetoric  ; 

Supplementing  the  Development  of  the  Science  with 
Exhaustive  Practice  in  Composition. 

A  Course  of  Practical  Lessons  Adapted  for  use  in  High  Scliools  and 
Academies,  and  in  the  Lower  Classes  of  Colleges. 

BY 

BRAINERD  KELLOGG,  A.M., 

Professor  of  the  English,  Language  and  Literature  in  the  Brooklyn 

Collegiate  and  Polytechnic  Institute,  and  one  of  the  authors  of 

Reed  &  Kellogg' s  "  Graded  Lessons  in  English" 

and  "Higher  Lessons  in  English." 


In  preparing  this  work  upon  Rhetoric,  the  author's  aim  has  been  to 
write  a  practical  text-book  for  High  Schools,  Academies,  and  the  lower 
classes  of  Colleges,  based  upon  the  science  rather  than  an  exhaustive 
treatise  upon  the  science  itself. 

This  work  has  grown  up  out  of  the  belief  that  the  rhetoric  which 
the  pupil  needs  is  not  that  which  lodges  finally  in  the  memory,  but  that 
which  has  worked  its  way  down  into  his  tongue  and  fingers,  enabling 
him  to  speak  and  write  the  better  for  having  studied  it.  The  author 
believes  that  the  aim  of  the  study  should  be  to  put  the  pupil  in  posses- 
sion of  an  art,  and  that  this  can  be  done  not  by  forcing  the  science  into 
him  through  eye  and  ear,  but  by  drawing  it  out  of  him,  in  products, 
through  tongue  and  pen.  Hence  all  explanations  of  principles  are  fol- 
lowed by  exhaustive  practice  in  Composition — to  this  everything  is  made 
tributary. 


"  Kellogg's  Rhetoric  is  evidently  the 
fruit  of  scholarship  and  large  experience. 
The  author  has  collected  his  own  mate- 
rials, and  disposed  of  them  with  the  skill 
of  a  master;  his  statements  are  precise, 
lucid,  and  sufficiently  copious.  Nothing 
is  sacrificed  to  show  ;  the  book  is  intended 
for  use,  and  the  abundance  of  examples 
will  constitute  one  of  its  chief  merits  in 
the  eyes  of  the  thorough  teacher."— Pro/'. 
A.  S.  Cook,  Johns  Hopkins  University, 
Baltimore,  Md. 


"This  is  just  the  work  to  take  the 
place  of  the  much-stilted  'Sentential 
Analysis '  that  is  being  waded  through  to 
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not  only  teaches  ihe  discipline  of  analyz- 
ing thought,  but  leads  the  student  to 
feel  that  it  is  his  thought  that  is  being 
dealt  with,  dissected,  and  unfolded,  to 
efficient  expression."— JFVo/".  Cf.  S.  Alhee, 
Prest.  of  State  Normal  School,  Oshkosh. 
Wis. 


276  pages,  13mo,  attracfcively  bound  in  cloth. 


;\*^ 


EFFINGHAM  MAYNARD  &  CO.,  Publishers,  New  York. 


Vj3 


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AText-Book  on  English  Literature, 

With  copious  extracts  from  the  leading  authors,  English  and  Ameri- 
can. With  full  Instructions  as  to  the  Method  in  which  these  are 
to  be  studied.     Adapted  for  use  in  Colleges,  High  Schools, 

"^"ofessor  of 
ollegiate 
n  Rhet- 
'  Graded 
nglish." 


M577070 


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JK251 
Y53 

1389 

Sduc, 

Lib. 


I  XL— 
III.— 
-Eliza- 
to  the 
Swift's 
"rench 
ution, 

of  the 
.  color- 

cannot 
tie  and 
t  upon 
;work, 
L  these 

would 
Lch  are 
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en  the 
are  by 
in  the^ 


^ 


ig-and 
exauung-  nra  juag^meiu  avtrvery  step  OT  tne  "wa;f 'wnTcn  leacm-xrom  the 
author's  diction  up  through  his  style  and  thought  to  the  author  himself, 
and  in  many  other  ways  it  places  the  pupil  on  the  best  possible  footing  with 
the  authors  whose  acquaintance  it  Is  his  business,  as  well  as  his  pleasure,  to 
make. 

Short  estimates  of  the  leading  authors,  made  by  the  best  English  and 
American  critics,  have  been  inserted,  most  of  them  contemporary  with  us. 

The  author  has  endeavored  to  make  a  practical,  common-sense  text- 
book :  one  that  would  so  educate  the  student  that  he  would  know  and 
enjoy  good  literature. 

"  I  find  the  book  in  its  treatment  of  English  literature  euperior  to  any  other  I 
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books,  is  that  it  is  a  means  to  an  end,  simply  a  guide-book  to  the  study  of  En^li^h 
literature.  Too  many  students  in  the  past 'have  studied,  not  the  literature  of  the 
English  language,  but  some  author's  opinion  of  that  literature.  I  know  from  ex- 
perience that  your  method  of  treatment  will  prove  an  eminently  successful  one."— 
James  H.  Shults,  Prin.  of  the  West  High  School,  Cleveland,  0. 

Effingham  maynard  &  Co.,  Publishers,  New  York. 


fiTi,>r.x*:.«i9S:»:;«:'5KS^ 


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